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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
January 22, 2024
WISA
TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware |
|
001-38608 |
|
30-1135279 |
(State or other jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification Number) |
15268 NW Greenbrier Pkwy
Beaverton, OR |
|
97006 |
(Address of registrant’s principal executive office) |
|
(Zip code) |
(408) 627-4716
(Registrant’s telephone
number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of
the following provisions (see General Instruction A.2. below):
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
|
Trading symbol(s) |
|
Name of each exchange on which
registered |
Common Stock, par value $0.0001 per share |
|
WISA |
|
The Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive
Agreement.
On January 22, 2024, WiSA Technologies, Inc.
(the “Company”) entered into a Securities Purchase Agreements (the “Purchase Agreements”), with each of four
accredited investors (each an “Investor” and together the “Investors”), pursuant to which the Company agreed
to issue to the Investors promissory notes in the aggregate principal amount of $1,000,000 (the “Promissory Note”) and common
stock purchase warrants (the “Warrants”) to purchase up to an aggregate of 10,000,000 shares (the “Warrant Shares”)
of the Company’s common stock, $0.0001 par value per share (the “Common Stock”), at an exercise price of $0.1482 per
share (the “Exercise Price”). Pursuant to the Purchase Agreements, upon the closing of the private placement of the Promissory
Notes and the Warrants (the “Private Placement”), the Company will receive gross proceeds of $600,000, before fees and other
expenses associated with the transaction. The Company intends to use the net proceeds received by it in connection with the Private Placement
primarily for working capital and general corporate purposes.
Each of the Promissory Note matures on the earlier
to occur of: (i) July 17, 2024 and (ii) the full or partial exercise of certain Series B Convertible Preferred Stock purchase warrants
currently held by the Investor, issuable for at least 9,322 shares of the Company’s Series B Convertible Preferred Stock, par value
$0.0001 per share (“Series B Preferred Stock”), upon such full or partial exercise. The Promissory Notes do not bear interest
except upon the occurrence of an Event of Default (as defined in the Promissory Notes). The Promissory Notes are not convertible into
shares of Common Stock or Series B Preferred Stock.
At any time after issuance of the Promissory
Notes, the Company may repay all or less than all of the outstanding principal amount of the Promissory Notes, with no penalty or premium
of any kind, upon at least one (1) days’ written notice to the applicable Investor.
The Warrants are not exercisable until after
the date that stockholder approval is obtained to approve each of (i) the issuance of the Warrant Shares issuable upon the exercise of
the Warrants, as may be required by the applicable rules and regulations of The Nasdaq Stock Market LLC (“Nasdaq”) and (ii)
if necessary, a proposal to amend the Company’s certificate of incorporation, as amended, to increase the authorized share capital
of the Company to an amount sufficient to cover the Warrant Shares or to effectuate a reverse stock split whereby the authorized share
capital is not split and is sufficient to cover the Warrant Shares (and such reverse split is effectuated) (“Stockholder Approval”),
and will expire on the fifth (5th) anniversary of the date on which Stockholder Approval is received and deemed effective
under Delaware law. The Exercise Price is subject to downward adjustment, upon any subsequent transaction at a price lower than the Exercise
Price then in effect and standard adjustments in the event of certain events, such as stock splits, combinations, dividends, distributions,
reclassifications, mergers or other corporate changes.
The exercise of the Warrants is subject to beneficial
ownership limitations such that each Investor may not exercise the Warrant to the extent that such exercise would result in the Investor
being the beneficial owner in excess of 4.99% (or, upon election of the Investor, 9.99%) of the outstanding shares of Common Stock, which
beneficial ownership limitation may be increased up to 9.99% upon notice to the Company, provided that any increase in such limitation
will not be effective until 61 days following notice to the Company.
The Purchase Agreement contains certain representations
and warranties, covenants and indemnities customary for similar transactions. In addition, pursuant to the Purchase Agreement, the Company
has also agreed to the following covenants: (i) to hold an annual or special meeting of stockholders on or prior to March 4, 2024 for
the purpose of obtaining Stockholder Approval ; and (ii) to file a registration statement providing for the resale by the Investors of
the Warrant Shares no later than forty-five (45) days following the date the Company obtains Stockholder Approval.
Each of the Promissory Notes also contains customary
events of default, which include, without limitation, failure to pay principal in respect of the Promissory Note when due at maturity
or otherwise, failure to observe or perform any material covenant, agreement, or warranty contained in the Promissory Note, or the breach
of any of the representations and warranties set forth in the Promissory Note or any transaction document executed contemporaneously
with the Promissory Note, and events of bankruptcy or insolvency of the Company. Upon the occurrence of such an event of default under
the Promissory Note, the Investor has the right to demand repayment of the outstanding amount of the Promissory Note in full.
The transactions contemplated by the Purchase
Agreements are expected to close on January 23, 2024.
The offer and sale of the securities in the Private
Placement were made pursuant to the exemption from registration provided by Section 4(a)(2) of the Securities Act, as amended (the “Securities
Act”) and/or Rule 506(b) of Regulation D promulgated thereunder. Such offer and sale was made only to an “accredited investor”
under Rule 501 of Regulation D promulgated under the Securities Act, and without any form of general solicitation and with full access
to any information requested by such investor regarding the Company or the securities offered and to be issued in the Private Placement.
The foregoing does not purport to be a complete
description of each of the Promissory Notes, the Warrants, and the Purchase Agreements, and each such description is qualified in its
entirety by reference to the full text of each such document, forms of which are attached as Exhibits 4.1, 4.2 and 10.1 to this Current
Report on Form 8-K (this “Form 8-K”) and are incorporated by reference herein.
Item 2.03. Creation of a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set
forth in Item 1.01 hereof with respect to the Purchase Agreements and the Promissory Notes is incorporated herein by reference.
Item 3.02. Unregistered Sale of Equity Securities.
The applicable information
set forth in Item 1.01 hereof with respect to the issuance of Company securities in connection with the Private Placement is incorporated
herein by reference.
Cautionary Statement
Regarding Forward-Looking Statements
This Form 8-K contains
forward-looking statements within the meaning of the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995.
Forward-looking statements include, but are not limited to, statements that express the Company’s intentions, beliefs, expectations,
strategies, predictions or any other statements related to the Company’s future activities, or future events or conditions, which
can be identified by terminology such as “may,” “will,” “expects,” “anticipates,” “aims,”
“potential,” “future,” “intends,” “plans,” “believes,” “estimates,”
“continue,” “likely to” and other similar expressions intended to identify forward-looking statements, although
not all forward-looking statements contain these identifying words. These statements are not historical facts and are based on current
expectations, estimates and projections about the Company’s business based, in part, on assumptions made by its management, including,
without limitation, the intended use of proceeds upon consummation of the Private Placement. These statements are not guarantees of future
performance and involve risks, uncertainties and assumptions that are difficult to predict, many of which are beyond the Company’s
control, including, among other things, the Company’s ability to maintain its listing of Common Stock on the Nasdaq Capital Market,
which may cause the Company’s actual results, performance and achievements to differ materially from those contained in any forward-looking
statement. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in the forward-looking statements
due to numerous factors, including those risks that may be included in the periodic reports and other filings that the Company files
from time to time with the U.S. Securities and Exchange Commission. Any forward-looking statements speak only as of the date on which
they are made, and the Company undertakes no obligation to update any forward-looking statement to reflect events or circumstances after
the date of this Form 8-K, except as required by applicable law.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: January 23, 2024 |
WISA TECHNOLOGIES, INC. |
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By: |
/s/ Brett Moyer |
|
|
Name: |
Brett Moyer |
|
|
Title: |
Chief Executive Officer |
Exhibit 4.1
WISA TECHNOLOGIES, INC.
Promissory Note
Principal Amount: $____________ |
Issuance Date: January 18, 2024 |
|
|
Purchase Price: $___________ |
New York, NY |
FOR VALUE RECEIVED, the undersigned
WiSA Technologies, Inc., a Delaware corporation (the “Borrower”), promises to pay to the order of [___________],
its successors or assigns (the “Lender”), [___________] dollars ($[________]) (the “Principal Amount”),
together with interest due on this Note, by the Maturity Date as provided herein or on such earlier date as this Note is required or permitted
to be repaid as provided hereunder.
Section 1. Maturity;
Interest. The Principal Amount, together with interest due on this Note outstanding as of the date of repayment, shall be repaid in
cash on the earlier to occur of: (i) July 17, 2024 and (ii) the full or partial exercise of certain Series B Convertible
Preferred Stock purchase warrants currently held by the Lender or its affiliates, issuable for at least 9,322 shares of the Borrower’s
Series B Convertible Preferred Stock, par value $0.0001 per share, upon such full or partial exercise (such date, the “Maturity
Date”). This Note shall not bear interest except as contemplated in Section 4 below. At any time after the Issuance Date,
the Borrower may repay all or less than all of the outstanding Principal Amount, with no penalty or premium of any kind, upon at least
one (1) day’s written notice to the Lender.
Section 2. Repayment.
On the Maturity Date (or earlier as provided in Section 1), Borrower shall repay, in cash, one hundred percent (100%) of the Principal
Amount and interest due on this Note outstanding as of the date of repayment. So long as no Event of Default has occurred, such repayment
shall satisfy Borrower’s obligations pursuant to this Note in full, and this Note shall be of no further force and effect.
Section 3. Transferability.
Upon written consent of Borrower, this Note and any of the rights granted hereunder may be freely transferred or assigned by Lender, in
whole or in part. .
Section 4. Event of
Default.
(a) In the event that any
one of the following events shall occur (whatever the reason and whether it shall be voluntary or involuntary or effected by operation
of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental
body), it shall be deemed an Event of Default:
(i) Any default in the
payment of the principal of, interest on or other charges in respect of this Note, as and when the same shall become due and payable;
(ii) Borrower shall fail
to observe or perform any other material covenant, agreement or warranty contained in, or otherwise commit any breach or default of any
provision of this Note;
(iii) There shall be
a breach of any of the representations and warranties set forth in this Note or any transaction document executed contemporaneously herewith;
or
(iv) Borrower, shall
commence, or there shall be commenced against Borrower any applicable bankruptcy or insolvency laws as now or hereafter in effect or any
successor thereto, or Borrower commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to Borrower or there
is commenced against Borrower any such bankruptcy, insolvency or other proceeding which remains undismissed for a period of sixty (60)
days; or Borrower is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is
entered; or Borrower suffers any appointment of any custodian, private or court appointed receiver or the like for it or any substantial
part of its property which continues undischarged or unstayed for a period of sixty (60) days; or Borrower makes a general assignment
for the benefit of creditors; or Borrower shall fail to pay or shall state that it is unable to pay or shall be liable to pay, its debts
as they become due or by any act or failure to act expressly indicate its consent to, approval of or acquiescence in any of the foregoing;
or any corporate or other action is taken by the Borrower for the purpose of effecting any of the foregoing.
(b) Upon the occurrence
of an Event of Default, the Lender shall give the Borrower notice of such occurrence, at which time the Borrower shall have five (5) business
days from receipt of such notice to pay the outstanding amount of the Note in full. In the event that full payment is not made upon the
expiry of the five (5) day period, a default penalty equal to two percent (2%) of the Principal Amount per month during the period
of Default (the “Default Penalty”). Lender may then, at its sole discretion declare the entire then outstanding Principal
Amount of this Note and the Default Penalty immediately due and payable (a “Default Declaration”), in which event the
Lender may, at its sole discretion take any action it deems necessary to recover amounts due under this Note.
(c) Upon the occurrence
of an Event of Default, the Lender shall be entitled to receive, in addition to the Principal Amount of the Note and the Default Penalty,
the Lender shall be entitled to recover all of its costs, fees (including without limitation, reasonable attorney’s fees and disbursements),
and expenses relating collection and enforcement Note, including all costs and expenses incurred by it in enforcing its rights under the
Note and any transaction document entered into contemporaneously herewith.
(d) The failure of Lender
to exercise any of its rights hereunder in any particular instance shall not constitute a waiver of the same or of any other right in
that or any subsequent instance with respect to Lender or any subsequent holder. BORROWER ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THIS
NOTE IS A COMMERCIAL TRANSACTION. BORROWER FURTHER WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT, PROTEST AND
NOTICE OF PROTEST, AND NOTICE OF ANY RENEWALS OR EXTENSIONS OF THIS NOTE. BORROWER ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY, VOLUNTARILY,
WITHOUT DURESS AND ONLY AFTER CONSIDERATION OF RAMIFICATION THIS WAIVER WITH ITS ATTORNEYS. Lender may immediately and without expiration
of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law.
The remedies available to the Lender upon the occurrence of an Event of Default shall be cumulative.
Section 5. Notices.
Any and all notices, service of process or other communications or deliveries required or permitted to be given or made pursuant to any
of the provisions of this Note shall be deemed to have been duly given or made for all purposes when hand delivered or sent by certified
or registered mail, return receipt requested and postage prepaid, overnight mail or courier as follows:
If to Lender, at:
[_____]
[_____]
Or such other
address as may be given to the Borrower from time to time
If to Borrower,
at:
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, OR 97006
Attn: Brett Moyer, Chief Executive Officer
Or such other
address as may be given to the Lender from time to time
Section 6. Usury.
This Note is hereby expressly limited so that in no event whatsoever, whether by reason of acceleration of maturity of the loan evidenced
hereby or otherwise, shall the amount paid or agreed to be paid to the Lender hereunder for the loan, use, forbearance or detention of
money exceed that permissible under applicable law. If at any time the performance of any provision of this Note or of any other agreement
or instrument entered into in connection with this Note involves a payment exceeding the limit of the interest that may be validly charged
for the loan, use, forbearance or detention of money under applicable law, then automatically and retroactively, ipso facto, the obligation
to be performed shall be reduced to such limit, it being the specific intent of the Borrower and the Lender that all payments under this
Note are to be credited first to interest as permitted by law, but not in excess of (i) the agreed rate of interest set forth
herein or therein or (ii) that permitted by law, whichever is the lesser, and the balance toward the reduction of principal.
The provision of this Section 6 shall never be superseded or waived and shall control every other provision of this Note and all
other agreements and instruments between the Borrower and the Lender entered into in connection with this Note. To the extent permitted
by applicable law, Borrower waives any right to assert the defense of usury.
Section 7. Governing
Law; Waiver of Jury Trial. This Note and the provisions hereof are to be construed according to and are governed by the laws of the
State of Delaware, without regard to principles of conflicts of laws thereof. Borrower agrees that the New York State Supreme Court located
in the County of New York, State of New York shall have exclusive jurisdiction in connection with any dispute concerning or arising out
of this Note or otherwise relating to the parties relationship. In any action, lawsuit or proceeding brought to enforce or interpret the
provisions of this Note and/or arising out of or relating to any dispute between the parties, Lender shall be entitled to recover all
of its costs and expenses relating collection and enforcement of this Note (including without limitation, reasonable attorney’s
fees and disbursements) in addition to any other relief to which Lender may be entitled and all costs of collection, including any legal
fees associated with this Note will be paid by the Borrower. Each party agrees that any process or notice to be served or delivered in
connection with any action, lawsuit or proceeding brought hereunder may be accomplished in accordance with the notice provisions set forth
above or as otherwise provided by applicable law. BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM,
WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS NOTE.
Section 8. Successors
and Assigns. Subject to applicable laws, this Note and the rights and obligations evidenced hereby shall inure to the benefit of and
be binding upon the successors of Borrower and the successors and assigns of Lender.
Section 9. Amendment.
This Note may be modified or amended or the provisions hereof waived only with the written consent of Lender and Borrower.
Section 10. Severability.
Wherever possible, each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Note.
SIGNATURE PAGE TO FOLLOW
IN WITNESS WHEREOF, Borrower
and Lender have caused this Promissory Note to be executed by a duly authorized officer as of the date first above indicated.
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BORROWER: |
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WiSA Technologies, Inc. |
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By: |
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Name: Brett Moyer |
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Title: Chief Executive Officer |
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LENDER: [__] |
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By: |
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Name: |
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Title: |
Exhibit 4.2
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH
THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
WISA
TECHNOLOGIES, INC.
Warrant Shares: ______ |
Initial Exercise Date: ______ |
|
Issuance Date: January 18, 2024 |
THIS COMMON STOCK PURCHASE
WARRANT (the “Warrant”) certifies that, for value received, _____ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the Stockholder Approval Date (as defined below) (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New
York City time) on the date that is the five (5) year anniversary of the Stockholder Approval Date (the “Termination Date”)
but not thereafter, to purchase from WiSA Technologies, Inc., a Delaware corporation (the “Company”), up to _____
shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one share
of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b). This Warrant is being issued
pursuant to that certain securities purchase agreement by and between the Holder and the Company, dated as of January 18, 2024 (the
“Agreement”).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1.
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Business Day”
means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by law or other governmental action to close.
“Certificate of Incorporation”
means the Company’s certificate of incorporation, as amended, filed with the Secretary of State of the State of Delaware.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance”
means the issuance of (a) shares of Common Stock or options to employees, officers, directors or consultants of the Company pursuant
to any equity incentive or stock purchase plan duly adopted for such purpose, by a majority of the non-employee members of the Board of
Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to
the Company, (b) securities upon the exercise or exchange of any Warrants or of any Series B Warrants, conversions of the Series B
Preferred Stock into shares of Common Stock, including, without limitation, in connection with the transactions pursuant to the Agreement
and any other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date
of the Agreement, provided that such securities have not been amended since the date of the Agreement to increase the number of such securities
or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with any stock splits
or combinations) or to extend the term of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions
approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities”
(as defined in Rule 144), and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which
is, itself or through its subsidiaries, believed by the Company to be an operating company or an owner of an asset in a business synergistic
with the business of the Company and shall provide to the Company additional 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.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Reset
Date” means the sixth (6th) Trading Day following the date on which the
next reverse stock split is effected by the Company of its outstanding Common Stock following the date of this Warrant.
“Reset Price”
means the lowest VWAP of the Common Stock in the 5 Trading Days immediately prior to the Reset Date.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Series B Preferred
Stock” means the Company’s Series B Convertible Preferred Stock, oar value $0.0001 per share.
“Series B Warrant”
means the Company’s Series B Convertible Preferred Stock purchase warrants issued to certain holders thereof, including the
Holder, on or about October 17, 2023.
“Subsidiary”
means any subsidiary of the Company, which is actively engaged in a trade or business, and shall, where applicable, also include any direct
or indirect subsidiary of the Company formed or acquired after the date hereof.
“Stockholder Approval”
means such approval as may be required by the applicable rules and regulations of The Nasdaq Stock Market LLC (or any successor entity)
from the stockholders of the Company with respect to each of (i) the issuance of Warrants to purchase up to an aggregate of 10,000,000
shares of Common Stock in connection with the Agreement and other securities purchase agreements between the Company and other purchasers
signatories thereto, dated as of January 18, 2024, and the Warrant Shares issuable upon the exercise thereof and (ii) if necessary,
a proposal to amend the Certificate of Incorporation to increase the authorized share capital of the Company to an amount sufficient to
cover the Warrant Shares or to effectuate a reverse stock split whereby the authorized shares capital is not split and is sufficient to
cover the Warrant Shares (and such reverse split is effectuated) (the “Capital Event”).
“Stockholder Approval
Date” means the date on which Stockholder Approval is received and deemed effective under Delaware law.
“Trading Day”
means a day on which the Common Stock is traded on a Trading Market.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transfer Agent”
means VStock Transfer, LLC, the current transfer agent of the Company with a mailing address of 8 Lafayette Place, Woodmere, New York
11598, a phone number of (212) 828-8436 and an email address of shay@vstock.com, and any successor transfer agent of the Company.
“Variable Rate Transaction”
means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable
or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion price, exercise
price or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common
Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price
that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of
specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters
into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit or an “at-the-market
offering”, whereby the Company may issue securities at a future determined price regardless of whether shares pursuant to such agreement
have actually been issued and regardless of whether such agreement is subsequently canceled.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if
the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in The
Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per
share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined
by an independent appraiser selected in good faith by the Holders of a majority in interest of the Existing Warrants then outstanding
and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants”
means this Warrant issued by the Company pursuant to the Letter Statement.
Section 2. Exercise.
a) Exercise of
Warrant. Subject to the provisions of Section 2(e) hereof, exercise of the subscription rights represented by this
Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the
Termination Date by delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of
Exercise in the form annexed hereto (the “Notice of Exercise”). Within the earlier of (i) two
(2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in
Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price
for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank. No ink original Notice of Exercise shall be required nor shall any medallion guarantee (or other type of guarantee or
notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be
required to physically surrender this Warrant to the Company until the Holder has exercised this Warrant for all of the Warrant
Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the
Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the
Company. Partial exercises of this Warrant resulting in subscriptions for a portion of the total number of Warrant Shares available
hereunder shall have the effect of lowering the outstanding number of Warrant Shares issuable hereunder in an amount equal to the
applicable number of Warrant Shares subscribed for. The Holder and the Company shall maintain records showing the number of Warrant
Shares subscribed for and the date of such subscriptions. The Company shall deliver to the Holder and the Company any objection to
any Notice of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of
this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the subscription for a
portion of the Warrant Shares hereunder, the number of Warrant Shares available for subscription hereunder at any given time may be
less than the amount stated on the face hereof.
b) Exercise Price. The
exercise price per share of Common Stock under this Warrant shall be $0.1482, subject to adjustment hereunder (the “Exercise
Price”).
c) Reset. On the Reset
Date, the Exercise Price shall be adjusted to equal the lower of (a) the Exercise Price then in effect (after taking into account
and adjusting for the reverse stock split) and (b) 100% of the applicable Reset Price determined as of the applicable date of determination.
d) Mechanics of Exercise.
i. Delivery of
Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares subscribed for hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depositary Trust Company
(“DTC”) through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a
participant in such system and there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by the Holder, and otherwise by physical delivery of a certificate, registered in the Company’s share register
in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days
after the delivery to the Company of the Notice of Exercise, provided that payment of the aggregate Exercise Price is received by the
Company one (1) Trading Day prior to such second Trading Day after the delivery of the Notice of Exercise, (ii) one (1) Trading
Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement
Period after the delivery to the Company of the Notice of Exercise, provided that payment of the aggregate Exercise Price is received
by the Company one (1) Trading Day prior to such second Trading Day after the delivery of the Notice of Exercise (such date, the
“Warrant Share Delivery Date” and such conditions, the “Exercise Conditions”). For the purposes
of Regulation SHO under the Exchange Act, upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes
to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date
of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price is received within the earlier of (i) two
(2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice
of Exercise. If the Company fails for any reason to deliver or cause the delivery to the Holder the Warrant Shares subject to a Notice
of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty,
for each $1,000 of Warrant Shares subject to such exercise, $10.00 per Trading Day (increasing to $20.00 per Trading Day on the third
Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares
are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program
so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the
standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market as in effect on the date
of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, cause the Company to deliver to the Holder
a new Warrant evidencing the rights of the Holder to subscribe for the unsubscribed for Warrant Shares called for by this Warrant, which
new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder,
if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of
Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date (so long as the Company has
provided wire transfer instructions to the Holder on Company letterhead signed by an executive officer of the Company, other than as
a result of failure of the Holder to timely deliver the aggregate Exercise Price, or a failure that is solely due to any action or
inaction by the Holder with respect to such exercise), and if after such date the Holder is required by its broker to purchase (in
an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver
in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the
Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase
obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number
of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the
Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and
delivery obligations hereunder. For example, if the Holder purchases shares of Common Stock having a total purchase price of $11,000
to cover a Buy-In with respect to an attempted exercise of this Warrant to subscribe for shares of Common Stock with an aggregate
exercise price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the
Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts
payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein
shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver
shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v. No Fractional
Shares or Scrip. Notwithstanding any provision to the contrary contained in this Warrant, the Company shall not be required to issue
any fraction of a Warrant Share or scrip representing fractional shares of Warrant Shares upon the exercise of this Warrant. As to any
fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either
pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round
up to the next whole share. Accordingly, a Holder is entitled to exercise a number of Warrants that would solely result in the Holder
receiving one or more whole Warrant Shares.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder. The Company shall pay all
Transfer Agent fees required for processing of any Notice of Exercise and all fees to DTC (or another established clearing corporation
performing similar functions) required for electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such
issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and
any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall
include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being
made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e),
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is
in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed
in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise
shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject
to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination.
In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the
Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or
its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial
Ownership Limitation” shall be [4.99/9.99%] of the number of shares of the Common Stock outstanding immediately after giving
effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase
or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation
in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares
of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply.
Any increase in the Beneficial Ownership Limitation will not be effective until the 61st
day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be
defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary
or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder
of this Warrant.
f) [Reserved].
Section 3. Certain
Adjustments.
a) Share Dividends and Splits.
If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions
on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding
shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares
of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be
the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise
of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment
made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) Subsequent Equity Sales.
If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell, enter into an agreement
to sell or grant any option to purchase, or sell or grant any right to reprice, or otherwise dispose of or issue (or announce any offer,
sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents, at an effective price per share
less than the Exercise Price then in effect (such lower price, the “Base Share Price” and such issuances collectively,
a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents
so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange
prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to
receive shares of Common Stock at an effective price per share that is less than the Exercise Price, such issuance shall be deemed to
have occurred for less than the Exercise Price on such date of the Dilutive Issuance at such effective price), then simultaneously with
the consummation (or, if earlier, the announcement) of each Dilutive Issuance, the Exercise Price shall be reduced and only reduced to
equal the Base Share Price. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 3(b) in
respect of an Exempt Issuance. The Company shall notify the Holder, in writing, no later than the Trading Day following the issuance or
deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 3(b), indicating therein the applicable issuance
price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance
Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 3(b),
upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price
regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. If the Company enters into a Variable
Rate Transaction, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible price, conversion
price or exercise price at which such securities may be issued, converted or exercised provided; however that the foregoing shall not
apply to an “at-the-market” offering program or similar offering facility unless and until the Company actually sells shares
under such program at a price per share less than the Exercise Price then in effect.
c) Subsequent Rights Offerings.
In addition to any adjustments pursuant to Section 3(a) above, if at any time that this Warrant is outstanding the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase shares, warrants, securities or other property pro rata to all of the
record holders of the Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant immediately before the record date for the grant, issuance
or sale of such Purchase Rights, or, if no such record date is established, the date as of which the record holders of shares of Common
Stock are to be determined for the grant, issue or sale of such Purchase Rights.
d) Pro Rata Distributions.
During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation,
any distribution of cash, share or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (except to the extent an adjustment was already made pursuant to Section 3(a))
(a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled
to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant immediately before the record date for such Distribution,
or, if no such record date is established, the date as of which the record holders of shares of Common Stock are to be determined for
the participation in such Distribution.
e) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more
related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all
of its Subsidiaries, taken as a whole), directly or indirectly effects any sale, lease, license, assignment, transfer, conveyance or
other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or
indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which
holders of shares of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and
has been accepted by the holders of 50% or more of the outstanding shares of Common Stock or 50% or more of the voting power of the
Common Stock of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any
reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the
Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or
indirectly, in one or more related transactions consummates a share purchase agreement or other business combination (including,
without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of
Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the
voting power of the Common Stock of the Company (each a “Fundamental Transaction”), then, upon any subsequent
exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such
exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any
limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or
acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the
“Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of
shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to
any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of
the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate
Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of
the Alternate Consideration. If holders of shares of Common Stock are given any choice as to the securities, cash or property to be
received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives
upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, the Company
shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor
Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents
in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably
satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall,
at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a
written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding amount of
share capital of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable
upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental
Transaction, and with an exercise price which applies the exercise price hereunder to such share capital (but taking into account
the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such share capital, such
amount of share capital and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the
Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term
“Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer
instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or
Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the
Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the
other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and
severally, had been named as the Company herein.
The Company shall provide in
writing and mail, by first class mail, postage prepaid, to each Holder, written notice of the execution of any such amendment, supplement
or agreement with the Successor Entity. Any supplemented or amended agreement entered into by the successor corporation or transferee
shall provide for adjustments, which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 3(e).
The provisions of this Section 3(e) shall similarly apply to successive reclassifications, changes, consolidations, mergers,
sales and conveyances of the kind described above.
f) Calculations. All
calculations under this Section 3 shall be made by the Company to the nearest cent or the nearest 1/100th of a share, as the case
may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g) Notice to Holder.
i. Adjustment to
Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment; provided, however, that the
Company may satisfy the notice requirement with respect to the Holder in this Section 3(g) by filing such information with the
Commission on its EDGAR system pursuant to a Current Report on Form 8-K, Quarterly Report on Form 10-Q or Annual Report on Form 10-K.
ii. Notice to Allow
Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock,
except for any recurring cash dividend (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the
Common Stock (excluding any granting or issuance of rights to all of the Company’s stockholders pursuant to a stockholder rights
plan), (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required
in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company (and its Subsidiaries, taken
as a whole) is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange
whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or
involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered
by facsimile or email to the Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the
Company, at least five (5) calendar days prior to the applicable record or effective date hereinafter specified (unless such information
is filed with the Commission on its EDGAR system in which case a notice shall not be required), a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to
be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights
or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange
is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof
shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided
in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company
shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled
to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice
except as may otherwise be expressly set forth herein.
Section 4. Transfer
of Warrant.
a) Transferability. Neither
this Warrant nor any of the rights hereunder are transferable.
b) New Warrants. This
Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with
a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney.
Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall
execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such
notice. All Warrants issued on transfers or exchanges shall be dated the Issuance Date and shall be identical with this Warrant except
as to the number of Warrant Shares issuable pursuant thereto.
Section 5. Registration
Rights. The Holder of this Warrant has certain rights to require the Company to register its resale of the Warrant Shares under the
Securities Act and any blue sky or securities laws of any jurisdictions within the United States at the time and in the manner specified
in the Agreement.
Section 6. Miscellaneous.
a) No Rights as Stockholder
Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as
a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3.
b) Loss, Theft, Destruction
or Mutilation of Warrant. The Company covenants that upon receipt by the Company of an affidavit of loss reasonably satisfactory to
the Company evidencing the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it, and upon surrender and cancellation
of such Warrant or share certificate, if mutilated, the Company will make and deliver a new Warrant or share certificate of like tenor
and dated as of such cancellation, in lieu of such Warrant or share certificate.
c) Saturdays, Sundays, Holidays, etc.
If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading
Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized Shares/Capital
Event. The Company covenants that, following the occurrence of a Capital Event and thereafter during the period the Warrant is outstanding,
the Company will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the
Warrant Shares upon the exercise of any subscription rights under this Warrant. The Company further covenants that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the
exercise of the subscription rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure
that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon
the exercise of the subscription rights represented by this Warrant will, upon exercise of the subscription rights represented by this
Warrant and payment of the Exercise Price for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid
and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes
in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as
waived or consented to by the holders of a majority of the then outstanding Warrants (based on the number of Warrant Shares underlying
such Warrants), the Company shall not by any action, including, without limitation, amending its Certificate of Incorporation or through
any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of the
Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not
increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in
par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all
such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable
the Company to perform its obligations under this Warrant.
Before taking any action which
would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company
shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or
bodies having jurisdiction thereof.
e) Governing Law. All
questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.
f) Jurisdiction.
Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers,
stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the
City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the
City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding
is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail
or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Warrant and
agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an
action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall
be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding. Notwithstanding the foregoing, nothing in this paragraph
shall limit or restrict the federal district court in which a Holder may bring a claim under the federal securities laws.
g) Restrictions. The
Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions upon
resale imposed by state and federal securities laws.
h) Nonwaiver and Expenses.
No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right
or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant, if the Company
willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company
shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable
attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto
or in otherwise enforcing any of its rights, powers or remedies hereunder.
i) Notices. Any and all
notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Exercise,
shall be in writing and delivered personally, by facsimile, e-mail or sent by a nationally recognized overnight courier service, addressed
to:
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, OR 97006
Attn: Brett Moyer, Chief Executive Officer
Email: bmoyer@wisatechnologies.com
or such other facsimile number, email address
or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries
to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile or e-mail, or sent by a nationally
recognized overnight courier service addressed to each Holder at the facsimile number, e-mail address or address of such Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (a) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail (or
e-mail attachment) at the email address set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York
City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number or e-mail (or e-mail attachment) at the e-mail address as set forth on the signature pages attached
hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd)
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt
by the party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material,
non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K.
j) Limitation of Liability.
No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of
any shares of Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
k) Remedies. The Holder,
in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance
of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for
specific performance that a remedy at law would be adequate.
l) Successors and Assigns.
Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and
be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions
of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder
or holder of Warrant Shares.
m) Amendment. This Warrant
may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holders of
a majority of the Warrant Shares underlying the Warrants of the Company issued on the Closing Date that are outstanding as of such date.
n) Severability. Wherever
possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if
any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
o) Headings. The headings
used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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WISA TECHNOLOGIES, INC. |
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By: |
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Name: Brett Moyer |
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Title: Chief Executive Officer |
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Dated: January 18, 2024
NOTICE OF EXERCISE
TO: |
WISA TECHNOLOGIES, INC. |
(1) The undersigned hereby
elects to subscribe for ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only required if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take
the form of lawful money of the United States; or
(3) Please issue said
Warrant Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be
delivered to the following DWAC Account Number:
DTC number: _______________________________ |
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Account name: _______________________________ |
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Account number: _______________________________ |
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[SIGNATURE OF HOLDER]
Name of Investing Entity: _______________________________ |
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Signature of Authorized Signatory of Investing Entity:
_______________________________ |
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Name of Authorized Signatory: _______________________________ |
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Title of Authorized Signatory: _______________________________ |
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Date: _______________________________ |
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Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement
(as amended, supplemented, restated and/or modified from time to time, this “Agreement”) is entered into as of January
18, 2024, by and between WiSA Technologies, Inc., a Delaware corporation (the “Company”), and [______] (the “Investor”).
BACKGROUND
A. The
board of directors (the “Board of Directors”) of the Company has authorized the issuance to Investor of the Note (as
defined below) and the Warrant (as defined below).
B The
Investor desires to purchase the Note and the Warrant on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration
of the foregoing recitals and the covenants and agreements set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
1.
DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings specified
or indicated below, and such meanings shall be equally applicable to the singular and plural forms of such defined terms:
“1933 Act”
means the Securities Act of 1933, as amended.
“1934 Act”
means the Securities Exchange Act of 1934, as amended.
“Affiliate”
means a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control
with, the Person specified, as such terms are used in and construed under Rule 405 under the Securities Act.
“Agreement”
has the meaning set forth in the preamble.
“Board of Directors”
has the meaning set forth in the recitals.
“Business Day”
means any day other than a Saturday, Sunday or any other day on which the Federal Reserve Bank of New York is closed in New York City.
“Closing”
has the meaning set forth in Section 2.2.
“Closing Date”
has the meaning set forth in Section 2.2.
“Code”
has the meaning set forth in Section 2.1.
“Common Stock”
means the common stock of the Company, par value $0.0001 per share.
“Company”
has the meaning set forth in the preamble.
“Funding Amount”
means an amount equal to [__________] Dollars ($[____]).
“Investor”
has the meaning set forth in the preamble.
“Law” means
any law, rule, regulation, order, judgment or decree, including, without limitation, any federal and state securities Laws.
“Legend Removal Date”
has the meaning set forth in Section 5.1(a).
“Losses”
has the meaning set forth in Section 5.5(a).
“Material Adverse
Effect” means any material adverse effect on (i) the businesses, properties, assets, prospects, operations, results of operations
or financial condition of the Company, or the Company and the Subsidiaries, taken as a whole, or (ii) the ability of the Company to consummate
the transactions contemplated by this Agreement or to perform its obligations hereunder or under the Note or the Warrant; provided,
however, that none of the following shall be deemed either alone or in combination to constitute, and none of the following shall
be taken into account in determining whether there has been or would be, a Material Adverse Effect: (a) any adverse effect resulting
from or arising out of general economic conditions; (b) any adverse effect resulting from or arising out of general conditions in the
industries in which the Company and the Subsidiaries operate; (c) any adverse effect resulting from any changes to applicable Law; or
(d) any adverse effect resulting from or arising out of any natural disaster or any acts of terrorism, sabotage, military action
or war or any escalation or worsening thereof; provided, further, that any event, occurrence, fact, condition or change
referred to in clauses (a) through (d) immediately above shall be taken into account in determining whether a Material Adverse Effect
has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate
effect on the Company and/or the Subsidiaries compared to other participants in the industries in which the Company and the Subsidiaries
operate.
“Note”
has the meaning set forth in Section 2.1.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Principal Amount”
has the meaning set forth in Section 2.1.
“Registration Statement”
means any registration statement of the Company filed under the 1933 Act that covers the resale of any of the Warrant Shares pursuant
to the provisions of this Agreement, including the Prospectus and amendments and supplements to such Registration Statement, and including
post-effective amendments, all exhibits and all material incorporated by reference in such Registration Statement.
“Rule 144”
means Rule 144 promulgated by the SEC pursuant to the 1933 Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC having substantially the same purpose and effect as such Rule.
“SEC” means
the United States Securities and Exchange Commission.
“Securities”
means the Note, the Warrant and the Warrant Shares.
“Series B Preferred
Stock” means the Company’s Series B Convertible Preferred Stock, oar value $0.0001 per share.
“Series B Warrant”
means the Company’s Series B Convertible Preferred Stock purchase warrants issued to certain holders thereof, including the Investor,
on or about October 17, 2023.
“Stockholder Approval”
shall mean the approval of such number of the holders of the outstanding shares of Company’s voting Common Stock as required by
the Company’s bylaws and the Delaware General Corporation Law: (a) if and to the extent legally required, to amend the Company’s
certificate of incorporation, as amended (the “Certificate of Incorporation”), to increase the number of authorized
shares of Common Stock by at least the number of shares of Common Stock equal to the number of Warrant Shares issuable hereunder, (b)
if applicable, to ratify and approve all of the transactions contemplated by the Transaction Documents, including the issuance of all
of Warrant Shares (as such term is defined in each of such documents) issued and potentially issuable to the Investor thereunder, all
as may be required by the applicable rules and regulations of the Trading Market (or any successor entity).
“Subsidiaries”
means the direct and indirect subsidiary of the Company.
“Trading Day”
means a day on which the Common Stock is traded on a Trading Market.
“Trading Market”
means whichever of the New York Stock Exchange, NYSE American, or the Nasdaq Stock Market (including the Nasdaq Capital Market, the Nasdaq
Global Market, and the Nasdaq Global Select Market), on which the Common Stock is listed or quoted for trading on the date in question.
“Transaction Documents”
means this Agreement, the Note, the Warrant and any other documents or agreements executed or delivered in connection with the transactions
contemplated hereunder.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in The Pink Open Market (or a
similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock
so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected
in good faith by the Holders of a majority in interest of the Existing Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
“Warrant”
has the meaning set forth in Section 2.1.
“Warrant Shares”
means the shares of Common Stock issuable upon exercise of the Warrant.
2.
PURCHASE AND SALE OF THE NOTE AND THE WARRANT.
2.1
Purchase and Sale of the Note and the Warrant. Subject to the terms and conditions set forth herein, at the Closing,
the Company shall issue and sell to the Investor, and the Investor shall purchase from the Company, (a) a convertible promissory note,
in the form attached hereto as Exhibit A (the “Note”), in the principal amount of [______________] Dollars
($[______]) (the “Principal Amount”) and (b) a Common Stock purchase warrant, in the form attached hereto as Exhibit
B, registered in the name of the Investor, pursuant to which the Investor shall have the right to acquire [_______] shares of
Common Stock (the “Warrant”), in exchange for the Funding Amount. The Investor and the Company agree that for U.S.
federal income tax purposes and applicable state, local and non-U.S. tax purposes, the Funding Amount shall be allocable between the Note
and the Warrant based on the relative fair market values thereof. Neither the Investor nor the Company shall take any contrary position
on any tax return, or in any audit, claim, investigation, inquiry or proceeding in respect of taxes, unless otherwise required pursuant
to a final determination within the meaning of Section 1313 of the Internal Revenue Code of 1986, as amended (the “Code”),
or any analogous provision of applicable state, local or non-U.S. law.
2.2
Closing. The closing hereunder, including payment for and delivery of the Note and the Warrant, shall take place
remotely via the exchange of documents and signatures, no later than one (1) Business Days following the execution and delivery of this
Agreement, subject to satisfaction or waiver of the conditions set forth in Section 6, or at such other time and place as the Company
and the Investor agree upon, orally or in writing (the “Closing,” and the date of the Closing being the “Closing
Date”).
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants to the Investor and
covenants with the Investor as of the date hereof and as of the Closing Date, the following representations and warranties are true and
correct:
3.1
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to
be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date
hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including
the exhibits thereto and documents incorporated by reference therein “SEC Reports”). As of their respective dates,
the SEC Reports complied in all material respects with the requirements of the Exchange Act and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading, except as otherwise noted or corrected
in a subsequent SEC Report. The Company is not currently an issuer identified in Rule 144(i) under the Securities Act.
3.2 Authorization; Enforcement. The Company has the requisite corporate power and authority to execute the Transaction
Documents, to issue and sell the Note and the Warrant pursuant hereto, and, to perform its obligations under the Transaction Documents,
including issuing the Warrant Shares on the terms set forth in this Agreement. The execution and delivery of the Transaction Documents
by the Company and the issuance and sale by the Company of the Securities pursuant hereto have been duly and validly authorized by the
Board of Directors and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection
therewith other than the Stockholder Approval. The Transaction Documents have been duly executed by the Company and, when delivered in
accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of creditors’ rights generally; (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other equitable remedies; and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law. The Warrant Shares, if and when issued upon exercise of the Warrant in
accordance with its terms, will be validly issued, fully paid and non-assessable and free from all taxes, liens and charges with respect
to the issuance thereof.
3.3 No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the issuance
and sale of the Note and the Warrant hereunder will not (a) conflict with or result in a violation of the Certificate of Incorporation,
the Company’s bylaws or other organizational or charter documents, or (b) conflict with, or constitute a material default (or
an event which, with notice or lapse of time or both, would become a material default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, any material agreement to which the Company is a party. Assuming the accuracy of the Investor’s
representations in Section 4 and subject to the making of the filings referred to in Section 5, (i) no approval
or authorization will be required from any governmental authority or agency, regulatory or self-regulatory agency or other third party
(including the Trading Market) in connection with the issuance of the Note and the Warrant and the other transactions contemplated by
this Agreement (including the issuance of the Warrant Shares upon exercise of the Warrant) and (ii) the issuance of the Note and
the Warrant, and the issuance of the Warrant Shares upon exercise of the Warrant will be exempt from the registration and qualification
requirements under the 1933 Act and all applicable state securities Laws.
3.4
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or
order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental
authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other
than: (i) the filings required pursuant hereto and thereto, (ii) application(s) or notice to each applicable Trading Market for the listing
of the Warrant Shares for trading thereon in the time and manner required thereby, (iii) if applicable, the filing of Form D with the
Commission and such other filings as may be required to be made under applicable state securities laws, and (iv) Stockholder Approval.
3.5
No General Solicitation. Neither the Company, nor any of its Affiliates, nor any person acting on its behalf,
has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer
or sale of the Note, Warrant and Warrant Shares pursuant to this Agreement.
3.6
Acknowledgment Regarding the Investor’s Purchase of the Note and the Warrant. The Board of Directors has
approved the execution of the Transaction Documents and the issuance and sale of the Note and the Warrant, based on its own independent
evaluation and determination that the terms of the Transaction Documents are reasonable and fair to the Company and in the best interests
of the Company and its stockholders. The Company is entering into this Agreement and is issuing and selling the Note and the Warrant
voluntarily and without economic duress. The Company has had independent legal counsel of its own choosing review the Transaction Documents
and advise the Company with respect thereto. The Company acknowledges and agrees that the Investor is acting solely in the capacity of
an arm’s length purchaser with respect to the Note and the Warrant and the transactions contemplated hereby and that neither the
Investor nor any person affiliated with the Investor is acting as a financial advisor to, or a fiduciary of, the Company (or in any similar
capacity) with respect to execution of the Transaction Documents or the issuance of the Note and the Warrant or any other transaction
contemplated hereby.
3.7
Disclosure. The Company confirms that neither it, nor to its knowledge, any other Person acting on its behalf
has provided the Investor or its agents or counsel with any information that the Company believes constitutes material, non-public information.
The Company understands and confirms that the Investor will rely on the foregoing representations and covenants in effecting transactions
in securities of the Company. All disclosures provided to the Investor regarding the Company, its business and the transactions contemplated
hereby, furnished by or on behalf of the Company (including the Company’s representations and warranties set forth in this Agreement)
are true and correct in all material respects and do not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
4.
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor represents and warrants to the Company as
follows:
4.1
Organization and Qualification. The Investor is either an individual or an entity duly incorporated or formed,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate,
partnership limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by
the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.
4.2
Authorization; Enforcement; Compliance with Other Instruments. The Investor has the requisite power and authority
to enter into this Agreement, and to perform its obligations under the Transaction Documents. The execution and delivery by the Investor
of the Transaction Documents to which it is a party have been duly and validly authorized by the Investor’s governing body and no
further consent or authorization is required. The Transaction Documents to which it is a party have been duly and validly executed and
delivered by the Investor and constitute valid and binding obligations of the Investor, enforceable against the Investor in accordance
with their terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies.
4.3
No Conflicts. The execution, delivery and performance of the Transaction Documents to which it is a party by
the Investor and the purchase of the Securities by the Investor will not (a) conflict with or result in a violation of the Investor’s
organizational documents, (b) conflict with, or constitute a material default (or an event which, with notice or lapse of time or both,
would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any
material agreement, contract, indenture mortgage, indebtedness or instrument to which the Investor is a party, or (c) violate any Law
applicable to the Investor or by which any of the Investor’s properties or assets are bound or affected. No approval or authorization
will be required from any governmental authority or agency, regulatory or self-regulatory agency or other third party in connection with
the purchase of the Securities and the other transactions contemplated by this Agreement.
4.4 Investment
Intent; Accredited Investor. The Investor is purchasing the Securities for its own account, for investment purposes, and not with
a view towards distribution. The Investor is an “accredited investor” as such term is defined in Rule 501(a) of Regulation
D of the 1933 Act. The Investor has, by reason of its business and financial experience, such knowledge, sophistication and experience
in financial and business matters and in making investment decisions of this type that it is capable of (a) evaluating the merits and
risks of an investment in the Note, the Warrant and the Warrant Shares and making an informed investment decision, (b) protecting its
own interests and (c) bearing the economic risk of such investment for an indefinite period of time.
4.5 Opportunity
to Discuss. The Investor has received all materials relating to the business, finance and operations of the Company and the Subsidiaries
as it has requested and has had an opportunity to discuss the business, management and financial affairs of the Company and the Subsidiaries
with the Company’s management. In making its investment decision, the Investor has relied solely on its own due diligence performed
on the Company by its own representatives.
4.6 No
Other Representations. Except for the representations and warranties set forth in this Agreement and in other Transaction Documents,
the Investor makes no other representations or warranties to the Company.
5.
OTHER AGREEMENTS OF THE PARTIES.
5.1 No
Restrictions on Transfer. The Warrant Shares, when issued pursuant to an effective Registration Statement, shall be freely
transferrable and any certificates representing such Warrant Shares shall not bear any legend.
(a) Certificates
evidencing the Warrant Shares shall not contain any legend: (i) while a Registration Statement is effective under the 1933 Act, (ii)
following any sale of such Warrant Shares pursuant to Rule 144, (iii) while such Warrant Shares are eligible for resale without
manner-of-sale restrictions and without current public information pursuant to Rule 144, or (iv) if such legend is not required
under applicable requirements of the 1933 Act (including judicial interpretations and pronouncements issued by the Staff of the
SEC). The Company shall cause its counsel to issue any legal opinion or instruction required by the Company’s transfer agent
to comply with the requirements set forth in this Section. At such time as a legend is no longer required for the Warrant Shares
under this Section 5.1(a), the Company will, no later than three (3) Business Days following the delivery by the Investor to
the Company or the Company’s transfer agent of a certificate representing Warrant Shares containing a restrictive legend (such
third Business Day, the “Legend Removal Date”), deliver or cause to be delivered to the Investor a certificate
representing such Warrant Shares that is free from all restrictive and other legends. In addition to any other remedies available to
the Investor, the Company shall pay to the Investor, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of
Warrant Shares (based on the VWAP of the Common Stock on the date such Warrant Shares are submitted to the Company or the
Company’s transfer agent) delivered for removal of the restrictive or other legend, $5 per Trading Day for each Trading Day
after the Legend Removal Date until such Warrant Shares are delivered without a legend. The Company may not make any notation
on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this
Section except as it may reasonably determine are necessary or appropriate to comply or to ensure compliance with those applicable
laws that are enacted or modified after the Closing.
5.2
Furnishing of Information. As long as the Investor owns the Warrants or Warrant Shares, the Company covenants
to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed
by the Company after the date hereof pursuant to the 1934 Act. As long as the Investor owns the Warrants or Warrant Shares, if the Company
is not required to file reports pursuant to such laws, it will prepare and furnish to the Investor and make publicly available in accordance
with Rule 144(c) such information as is required for the Investor to sell the Warrant Shares under Rule 144. The Company further covenants
that it will take such further action as any holder of Warrants or Warrant Shares may reasonably request, all to the extent required from
time to time to enable such Person to sell such Warrant Shares without registration under the 1933 Act within the limitation of the exemptions
provided by Rule 144 or other applicable exemptions.
5.3
Authorized Capital; Stockholder Meeting. The Company covenants that it shall use commercially reasonable efforts
to hold an annual or a special meeting of stockholders (“Stockholder Meeting”) on or prior to March 4, 2024 for the
purpose of obtaining Stockholder Approval, with the recommendation of the Board of Directors that proposals subject to Stockholder Approval
are approved, and the Company shall solicit proxies from its stockholders in connection therewith in the same manner as all other management
proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposals. If the
Company does not obtain Stockholder Approval at the first meeting, the Company shall call a meeting every ninety (90) days thereafter
to seek Stockholder Approval until the earlier of the date on which Stockholder Approval is obtained or the Warrants are no longer outstanding.
The Company covenants that, following Stockholder Approval and the applicable filings to amend the Certificate of Incorporation to increase
the authorized share capital of the Company to an amount sufficient to cover the Warrant Shares or to effectuate a reverse stock split
whereby the authorized shares capital is not split and is sufficient to cover the Warrant Shares and thereafter during the period the
Warrant is outstanding, the Company will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of the Warrant Shares upon the exercise of any subscription rights under the Warrant.
5.4 No
Shorting. So long as the Investor continues to hold the Securities or any portion thereof, the Investor will comply with the
provisions of Section 9 of the 1934 Act, and the rules promulgated thereunder, with respect to transactions involving the Common
Stock and will not, either directly or indirectly through its Affiliates, principals or advisors, engage in any short sales or other
similar hedging transactions with respect to the Common Stock.
5.5
Non-Public Information. The Company covenants and agrees that neither it nor any other Person acting on its behalf
will provide the Investor or its agents or counsel with any information that the Company believes constitutes material, non-public information.
To the extent the Company provides the Investor with material, non-public information, the Company shall publicly disclose such information
within three (3) Business Days of providing the information to the Investor. The Company understands and confirms that the Investor shall
be relying on the foregoing representation in effecting transactions in securities of the Company.
5.6
Listing of Warrant Shares. The Company shall: (a) in the time and manner required by each Trading Market on which
the Common Stock is listed, prepare and file with such Trading Market an additional shares listing application covering the Warrant Shares,
(b) take all steps necessary to cause such shares to be approved for listing on each Trading Market on which the Common Stock is
listed as soon as possible thereafter, (c) provide to the Investor evidence of such listing, and (d) maintain the listing of such shares
on each such Trading Market.
5.7
Share Transfer Agent. The Company has informed the Investor of the name of its share transfer agent and represents
and warrants that the transfer agent participates in the Depository Trust Company Fast Automated Securities Transfer program.
6.
CLOSING CONDITIONS
6.1
Conditions Precedent to the Obligations of the Investor. The obligation of the Investor to purchase the Note
and the Warrant at the Closing is subject to the satisfaction or waiver by the Investor, at or before such Closing, of each of the following
conditions:
(a)
Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct
in all material respects as of the date when made and as of such Closing as though made on and as of such date.
(b)
Performance. The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements
and conditions required by the Transaction Documents to be performed, satisfied or complied with by it at or prior to such Closing.
(c)
No Suspensions of Trading in Common Stock; Listing. Trading in the Common Stock shall not have been suspended by the SEC
or any Trading Market (except for any suspensions of trading of not more than one day on which the Trading Market is open solely to permit
dissemination of material information regarding the Company) at any time since the date of execution of this Agreement, and the Common
Stock shall have been at all times since such date listed for trading on a Trading Market.
6.2
Conditions Precedent to the Obligations of the Company. The obligation of the Company to issue the Note and the
Warrant at the Closing is subject to the satisfaction or waiver by the Company, at or before such Closing, of each of the following conditions:
(a)
Representations and Warranties. The representations and warranties of the Investor contained herein shall be true and correct
in all material respects as of the date when made and as of such Closing Date as though made on and as of such date.
(b)
Performance. The Investor shall have performed, satisfied and complied in all material respects with all covenants, agreements
and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Investor at or prior to the Closing.
7.
[RESERVED]
8.
TERMINATION. This Agreement may be terminated by written consent of the parties hereto.
9. REGISTRATION
RIGHTS. As soon as reasonably practicable, but in any event no later than 45 calendar days following the date Company obtains
Stockholder Approval, the Company shall file the Registration Statement providing for the resale by the Investor of the Warrant Shares
issuable upon exercise of the Warrants and all other investors of their respective shares of Common Stock issuable upon exercise of their
common stock purchase warrants issued to such investors pursuant to substantially identical agreements as set forth in this Agreement.
The Company shall use commercially reasonable efforts to cause such registration to become effective as soon as practicable and to keep
the Registration Statement effective at all times until no such holder owns any such Warrants or shares of Common Stock issuable upon
exercise thereof. The Investor will be required to complete, sign and return an investor questionnaire to the Company in connection with
the Registration Statement.
10.
GENERAL PROVISIONS
10.1 Fees
and Expenses. Each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all
other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of the Transaction
Documents. The Company shall pay all stamp and other taxes and duties levied in connection with the sale of the Note and the Warrant.
10.2 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via email
at the email address specified in this Section prior to 5:00 p.m. (New York time) on a Business Day, (b) the next Business Day after
the date of transmission, if such notice or communication is delivered via email at the email address specified in this Section on a
day that is not a Business Day or later than 5:00 p.m. (New York time) on any date and earlier than 11:59 p.m. (New York time) on such
date, (c) the Business Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (d) upon
actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as
follows:
If to the Company:
WiSA Technologies, Inc.
15268 NW Greenbrier Parkway
Beaverton, OR 97006
Telephone: (408) 627-4716
Email: bmoyer@wisatechnologies.com
Attention: Brett Moyer, Chief Executive Officer
With a copy (which shall not constitute
notice) to:
Sullivan & Worcester LLP
1633 Broadway
New York, NY 10019
(212) 660-3060
Email: ddanovitch@sullivanlaw.com,
aschleicher@sullivanlaw.com
Attention: David E. Danovitch, Esq., Aaron M. Schleicher
If to the Investor:
As set forth on the signature page attached hereto.
or such other address as may be designated in
writing hereafter, in the same manner, by such Person.
10.3 Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable,
such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity
and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.
10.4 Governing
Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of New York, without reference to
principles of conflict of laws or choice of laws.
10.5 Jurisdiction
and Venue. Any action, proceeding or claim arising out of, or relating in any way to this Agreement shall be brought and enforced
in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York. The
Company and the Investor irrevocably submit to the jurisdiction of such courts, which jurisdiction shall be exclusive, and hereby waive
any objection to such exclusive jurisdiction or that such courts represent an inconvenient forum. The prevailing party in any such action
shall be entitled to recover its reasonable and documented attorneys’ fees and out-of-pocket expenses relating to such action or
proceeding.
10.6
WAIVER OF RIGHT TO JURY TRIAL. THE COMPANY AND THE INVESTOR HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE OTHER TRANSACTION DOCUMENTS.
10.7
Survival. The representations, warranties, agreements and covenants contained herein shall survive the Closing
and the delivery of the Securities.
10.8 Entire
Agreement. The Transaction Documents, together with the Exhibits and Schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such
matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
10.9 Amendments;
Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed by the Company and the Investor.
No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall
any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.
10.10
Construction. The headings herein are for convenience only, do not constitute a part of this Agreement and shall
not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen
by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. This Agreement shall
be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any provisions of this Agreement or any of the Transaction Documents.
10.11
Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of and be enforceable
by, the Company and the Investor and their respective successors and assigns. The Company may not assign this Agreement or any rights
or obligations hereunder without the prior written consent of the Investor. The Investor may assign any or all of its rights under this
Agreement to any Person to whom the Investor assigns or transfers any Securities, provided such transferee agrees in writing to be bound,
with respect to the transferred Securities, by the provisions hereof that apply to the “Investor” and such transferee is an
accredited investor.
10.12 No
Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
10.13 Further
Assurances. Each party hereto shall do and perform, or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
10.14 Counterparts.
This Agreement may be executed in two identical counterparts, both of which shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party and delivered to the other party. Signature pages delivered by facsimile
or e-mail shall have the same force and effect as an original signature.
10.15 Specific
Performance. The Company acknowledges that monetary damages alone would not be adequate compensation to the Investor for a breach
by the Company of this Agreement and the Investor may seek an injunction or an order for specific performance from a court of competent
jurisdiction if (a) the Company fails to comply or threatens not to comply with this Agreement or (b) the Investor has reason to believe
that the Company will not comply with this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned
have executed this Securities Purchase Agreement as of the date first set forth above.
COMPANY: |
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WISA TECHNOLOGIES, INC. |
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By: |
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Name: |
Brett Moyer |
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Title: |
Chief Executive Officer |
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[Signature Page of Securities Purchase Agreement]
[PURCHASER SIGNATURE PAGES TO WISA
SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser: |
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Signature of Authorized Signatory of Purchaser: |
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Name of Authorized Signatory: |
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Title of Authorized Signatory: |
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Email Address of Authorized Signatory: |
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Facsimile Number of Authorized Signatory: |
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Address for Notice to Purchaser:
Address for Delivery of the Securities to Purchaser (if not same as
address for notice):
Principal Amount of Note: |
$ |
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Purchase Price of Note: |
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Warrants: |
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__________________ |
Beneficial Ownership Blocker ¨ 4.99% or ¨ 9.99% |
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¨ |
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the Company to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded and (ii) any condition to each Closing, as applicable, contemplated by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead be an unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or the like or purchase price (as applicable) to such other party on the applicable Closing Date. |
EXHIBIT A
FORM OF NOTE
[See attached]
EXHIBIT B
FORM OF WARRANT
[See attached]
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