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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):
February 12, 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 February 13, 2024,
WiSA Technologies, Inc., a Delaware corporation (the “Company”), consummated a public offering (the “Offering”)
of an aggregate of 23,734,000 units (the “Units”) and 130,106,000 pre-funded units (the “Pre-Funded Units”) for
a purchase price of $0.065 per Unit and $0.0649 per Pre-Funded Unit, resulting in aggregate gross proceeds of approximately $10 million.
Each Unit consists of (i) one share (the “Shares”) of common stock, par value $0.0001 per share (“Common Stock”),
and (ii) one warrant (the “Warrants”) to purchase one share of Common Stock (the “Warrant Shares”), at an exercise
price of $0.065 per share. Each Pre-Funded Unit consists of (i) one pre-funded warrant (the “Pre-Funded Warrants”) to purchase
one share of Common Stock (the “Pre-Funded Warrant Shares”), and (ii) one Warrant. 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, 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 Pre-Funded Warrants
are immediately exercisable for one Share at an exercise price of $0.0001 per share, and will remain exercisable until exercised in full.
The Shares and accompanying
Warrants included in each Unit were issued separately, and the Pre-Funded Warrants and the accompanying Warrants included in each Pre-Funded
Unit were issued separately. The Units and Pre-Funded Units have no stand-alone rights and were not issued or certificated.
The exercise price of
the Warrant and number of shares of Common Stock issuable upon exercise will adjust in the event of certain stock dividends and distributions,
stock splits, stock combinations, reclassifications or similar events. Upon a Dilutive Issuance (as defined in the Warrant), the exercise
price will downward adjust subject to a floor price equal to $0.0401. In addition, on 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 issuance of the Warrants,
the exercise price per Warrant 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) the lowest VWAP (as defined in the Warrants) of the Common Stock in the five (5) trading
days immediately prior to such date.
In addition to the above,
if at any time on or after the date of issuance there occurs any stock split, stock dividend, stock combination, recapitalization or other
similar transaction involving our Common Stock, the lowest daily volume weighted average price during the period commencing five (5) consecutive
trading days immediately preceding and the five consecutive trading days immediately following such event is less than the exercise price
of the Warrants then in effect, then such exercise price shall be reduced to the lowest daily volume weighted average price during such
ten (10)-day period and the number of shares of Common Stock issuable upon exercise will be increased such that the aggregate exercise
price, after taking into account the decrease, shall be equal to the aggregate exercise price on the issuance date.
The Warrants may be exercised,
in certain circumstances, on a cashless basis. The holder of a Warrant may also effect an “alternative cashless exercise”
on or after the initial exercise date. In such event, the aggregate number of shares of Common Stock issuable in such alternative cashless
exercise pursuant to any given notice of exercise electing to effect an alternative cashless exercise shall equal the product of (x) the
aggregate number of shares of Common Stock that would be issuable upon exercise of the Warrant in accordance with the terms of the Warrant
if such exercise were by means of a cash exercise rather than a cashless exercise and (y) 0.65.
In connection with the
Offering, on February 12, 2024, the Company entered into a securities purchase agreement (the “Purchase Agreement”) with certain
investors, pursuant to which the Company agreed, subject to certain exemptions, not to offer for sale, issue, sell, contract to sell,
pledge or otherwise dispose of any of its shares of Common Stock or securities convertible into Common Stock until Stockholder Approval,
unless the Company is required to complete a financing prior to the date of Stockholder Approval, in order to satisfy Nasdaq’s continued
listing requirements.
Also in connection with
the Offering, on February 12, 2024, the Company entered into a placement agency agreement (the “Placement Agency Agreement”)
with Maxim Group LLC (the “Placement Agent”), pursuant to which the Placement Agent agreed to act as placement agent on a
“best efforts” basis in connection with the Offering. The Company paid the Placement Agent an aggregate fee equal to 7.0%
of the gross proceeds raised in the Offering. The Company reimbursed the Placement Agent $75,000 for expenses in connection with the Offering.
The Placement Agency
Agreement and the Purchase Agreement each contains customary representations, warranties and agreements by the Company, customary conditions
to closing, indemnification obligations of the Company, the Placement Agent, or the purchasers in the Offering, as the case may be, other
obligations of the parties and termination provisions. In addition, pursuant to the terms of the Placement Agency Agreement, the Company
and its executive officers and directors have entered into agreements providing that the Company and each of these persons may not, without
the prior written consent of the Placement Agent, subject to certain exceptions, offer, issue, sell, transfer or otherwise dispose of
the Company’s securities for a period of sixty (60) days from the date of the Placement Agency Agreement.
The Units, the Pre-Funded
Units, the Shares, the Warrants, the Pre-Funded Warrants, the Pre-Funded Warrant Shares and the Warrant Shares were offered and sold by
the Company pursuant to the Company’s Registration Statement on Form S-1 (File No. 333-276631), filed by the Company with the U.S.
Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”),
as amended to date, including the Post-Effective Amendment No. 1 to the Registration Statement filed with the SEC pursuant to Rule 462(d)
of the Securities Act that became effective automatically upon filing on February 13, 2024 (the “Registration Statement”).
On February 12, 2024,
the Company entered into voting agreements with certain investors in the Offering (the “Voting Agreements”). Pursuant to the
terms of the Voting Agreements, such investors have agreed to vote all shares of Common Stock they beneficially own on and after February
12, 2024, including the shares of Common Stock purchased by them in the Offering, with respect to any proposals presented to the stockholders
of the Company at the Company’s next stockholders meeting. For clarity, each investor’s agreement to vote its shares of Common
Stock in accordance with the immediately preceding sentence, does not require the such investor to vote its shares for or against any
particular proposal or proposals, whether or not such proposal or proposals are recommended by the Company’s board of directors.
On February 13, 2024,
the Company entered into a warrant agency agreement with the Company’s transfer agent, VStock Transfer, LLC, who also acts as the
transfer agent and warrant agent for the Company, setting forth the terms and conditions of the Warrants and Pre-Funded Warrants sold
in the Offering (the “Warrant Agency Agreement”).
The Company used approximately
$6.3 million of the proceeds from this Offering to repurchase 62,657 shares of the Company’s Series B Convertible Preferred Stock,
par value $0.0001 per share, at $100 per share, and intends to use the remaining proceeds for other working capital and general corporate
purposes.
The foregoing does not
purport to be a complete description of each of the Placement Agency Agreement, the Warrant, the Pre-Funded Warrant, the Purchase Agreement,
the Warrant Agency Agreement and the Voting Agreement, and is qualified in its entirety by reference to the full text of each of such
document, which are filed as Exhibits 1.1, 4.1, 4.2, 10.1, 10.2 and 10.3, respectively, to this Current Report on Form 8-K (this “Form
8-K”) and incorporated herein by reference.
Item 3.01. Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
As previously disclosed,
on October 5, 2023, the Company received notice from the Listing Qualifications Staff (the “Staff”) of Nasdaq that the bid
price of its listed securities had closed at less than $1 per share over the previous 30 consecutive business days, and, as a result,
did not comply with Nasdaq Listing Rule 5550(a)(2) (the “Minimum Bid Price Requirement”). Therefore, in accordance with Listing
Rule 5810(c)(3)(A), the Company was provided 180 calendar days, or until April 2, 2024, to regain compliance with the Minimum Bid Price
Requirement.
As previously disclosed,
on November 17, 2023, the Staff notified the Company that it was not in compliance with Nasdaq Listing Rule 5550(b)(1), which requires
companies listed on Nasdaq to maintain a minimum of $2,500,000 in stockholders’ equity for continued listing (the “Stockholders’
Equity Requirement”). The Company reported stockholders’ equity (deficit) of ($885,000) in its Quarterly Report on Form 10-Q
for the quarter ended September 30, 2023, and, as a result, did not satisfy the Stockholders’ Equity Requirement pursuant to Listing
Rule 5550(b)(1).
On February 14, 2024,
the Company received notice (the “February 14 Letter”) from the Staff that the Staff had determined that as of February 14,
2024, the Company’s securities had a closing bid price of $0.10 or less for ten consecutive trading days triggering application
of Listing Rule 5810(c)(3)(A)(iii) which states in part: if during any compliance period specified in Rule 5810(c)(3)(A), a company’s
security has a closing bid price of $0.10 or less for ten consecutive trading days, the Listing Qualifications Department shall issue
a Staff Delisting Determination under Rule 5810 with respect to that security (the “Low Priced Stocks Rule”). As a result,
the Staff determined to delist the Company’s securities from Nasdaq, unless the Company timely requests an appeal of the Staff’s
determination to a Hearings Panel (the “Panel”), pursuant to the procedures set forth in the Nasdaq Listing Rule 5800 Series.
The Company will request a hearing before the Panel to appeal the February
14 Letter and to address all outstanding matters, including compliance with the Minimum Bid Price Requirement, the Low Priced Stocks Rule
and the Stockholders’ Equity Requirement, which hearing date has not been set as of the date of this Form 8-K. While the appeal
process is pending, the suspension of trading of the Common Stock, will be stayed and the Common Stock will continue to trade on
the Nasdaq Capital Market until the hearing process concludes and the Panel issues a written decision. The Company has been informed that
hearings are typically scheduled to occur approximately 30-45 days after the date of the hearing request. There are no assurances however,
that an extension will be granted or that a favorable decision will be obtained from the Panel.
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 Offering and the Company’s intention to request a hearing
before the Panel. 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 risks that may be included
in the periodic reports and other filings that the Company files from time to time with the SEC, which may cause the Company’s actual
results, performance and achievements to differ materially from those contained in any forward-looking statement. 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 7.01. Other Events
The Company issued press
releases announcing the pricing and closing of the Offering on February 12, 2024 and February 13, 2024, respectively. Copies of the press
releases are furnished herewith as Exhibit 99.1 and Exhibit 99.2 and are incorporated by reference herein. The information in this Item
7.01, including Exhibit 99.1 and Exhibit 99.2 attached hereto, is being furnished and shall not be deemed “filed” for the
purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), nor shall it be deemed incorporated
by reference in any of the Company’s filings under the Securities Act, or the Exchange Act, whether made before or after the date
hereof, except as shall be expressly set forth by specific reference to this Form 8-K in such filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. |
|
Description |
| 1.1* |
|
Placement Agency Agreement, dated as of February 12, 2024, by and between WiSA Technologies, Inc. and Maxim Group LLC, as placement agent. |
| 4.1* |
|
Form of Warrant |
| 4.2 |
|
Form of Pre-Funded Warrant (filed as an exhibit to Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-276631), filed with the SEC on February 5, 2024). |
| 10.1 |
|
Form of Securities Purchase Agreement (filed as an exhibit to Amendment No. 2 to the Registration Statement on Form S-1 (File No. 333-276631), filed with the SEC on February 8, 2024). |
| 10.2 |
|
Form of Warrant Agency Agreement (filed as an exhibit to Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-276631), filed with the SEC on February 5, 2024). |
| 10.3 |
|
Form of Voting Agreement (filed as an exhibit to Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-276631), filed with the SEC on February 5, 2024). |
| 99.1** |
|
Press Release dated February 12, 2024. |
| 99.2** |
|
Press Release dated February 13, 2024. |
| 104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document). |
| |
|
|
| * | | Filed herewith |
| ** | | Furnished herewith |
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: February 16, 2024 |
WISA TECHNOLOGIES, INC. |
| |
|
|
| |
By: |
/s/ Brett Moyer |
| |
|
Name: |
Brett Moyer |
| |
|
Title: |
Chief Executive Officer |
Exhibit 1.1
PLACEMENT AGENCY AGREEMENT
February 12, 2024
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, Oregon 97006
Dear Mr. Moyer:
This letter agreement (the “Agreement”)
constitutes the agreement between Maxim Group LLC (“Maxim” or the “Placement Agent”) and WiSA Technologies, Inc.,
a Delaware corporation (together with its subsidiaries, the “Company”), that Maxim shall serve as the exclusive placement
agent for the Company, on a “reasonable best efforts” basis, for the proposed placement to certain purchasers (the “Purchasers”)
of an aggregate of (i) 23,734,000 common units (each a “Common Unit”
and collectively, the “Common Units”), with each Common Unit consisting of (A) one share (each a “Share”
and collectively, the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), and (B) one common stock purchase warrant (the “Warrant”)
to purchase one share of Common Stock (the “Warrant Shares”), which are not exercisable
until after the Stockholder Approval Date (as defined in the Warrant) and expiring on the fifth (5th) anniversary of the date
on which Stockholder Approval is received and deemed effective under Delaware law, at an exercise price of $0.065 per share of
Common Stock, and (ii) 130,106,000 pre-funded units (each a “Pre-Funded Unit” and collectively, the “Pre-Funded
Units”), with each Pre-Funded Unit consisting of (A) one pre-funded warrant (each a “Pre-Funded Warrant”
and collectively, the “Pre-Funded Warrants”), with each Pre-Funded Warrant exercisable to purchase one share of Common
Stock (the “Pre-Funded Warrant Shares”) at an exercise price of $0.0001 per share, and (B) one Warrant. The Common
Units, the Pre-Funded Units and the securities included therein (i.e., the Shares, the Pre-Funded Warrants, the Pre-Funded Warrant Shares,
the Warrants and the Warrant Shares) are referred to herein as the “Securities.” The documents executed and delivered
by the Company and the Purchasers in connection with the Offering (as defined below), including, without limitation, a securities purchase
agreement (the “Purchase Agreement”), shall be collectively referred to herein as the “Transaction Documents.”
The purchase price to the Purchasers for each Common Unit is $0.065 and the purchase price to the Purchasers for each Pre-Funded Unit
is $0.0649. The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection
with the Offering.
Notwithstanding anything herein
to the contrary, in the event that the Placement Agent determines that any of the terms provided for hereunder do not comply with a rule of
the Financial Industry Regulatory Authority (“FINRA”), including but not limited to FINRA Rule 5110, then the
Company shall agree to amend this Agreement in writing upon the request of the Placement Agent to comply with any such rules; provided
that any such amendments shall not provide for terms that are less favorable to the Company than the terms of this Agreement.
Section 1. Agreement
to Act as Placement Agent.
(a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions
of this Agreement, the Placement Agent shall be the exclusive placement agent in connection with the offering and sale by the Company
of the Securities pursuant to the Company’s registration statement on Form S-1 (File No. 333-276631) (and including any
registration statement prepared and filed by the Company in accordance with Rule 462(b) pursuant to the Securities Act) (the
“Registration Statement”), with the terms of such offering (the “Offering”) to be subject to market
conditions and negotiations between the Company, the Placement Agent and the prospective Purchasers. The Placement Agent will act on a
reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities,
or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates”
(as defined below) be obligated to underwrite or purchase any of the Securities for its own account or otherwise provide any financing.
The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to
bind the Company with respect to any prospective offer to purchase the Securities and the Company shall have the sole right to accept
offers to purchase the Securities and may reject any such offer, in whole or in part. Subject to the terms and conditions hereof, payment
of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a “Closing”
and the date on which each Closing occurs, a “Closing Date”). The Closing shall occur via “Delivery Versus Payment”
(“DVP”), i.e., on the Closing Date, the Company shall issue the Shares directly to the account designated by the Placement
Agent and, upon receipt of such Shares, the Placement Agent shall electronically deliver such Shares to the applicable Purchaser and payment
shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company, and delivery of the Pre-Funded Warrants
and the Warrants shall be delivered via The Depository Trust Company Deposit or Withdrawal at Custodian system for the account of the
applicable Purchaser as set forth in the Purchase Agreement. As compensation for services rendered, the Company shall pay to the Placement
Agent the fees and expenses set forth below:
| |
(i) |
a cash fee equal to 7.0% of the gross proceeds received by the Company from the sale of the Securities at the applicable Closing; and |
| |
|
|
| |
(ii) |
reimbursement of the Placement Agent’s accountable expenses, including the Placement Agent’s legal counsel’s legal fees, up to $75,000. |
The Placement Agent reserves
the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be
made by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of FINRA Rules or that the terms
thereof require adjustment.
(b) The Placement Agent’s engagement hereunder shall become effective on the date hereof and shall continue until the later of (i) the
final closing date of the Offering and (ii) June 30, 2024; provided, however, that a party hereto may terminate
the engagement with respect to itself at any time upon 10 days written notice to the other parties, provided that such early termination
right shall only apply during the period after the Registration Statement has been approved by the Securities and Exchange Commission
(the “Termination Date”). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality,
indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will
survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and
to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to
be reimbursed under the FINRA Rules, will survive any expiration or termination of this Agreement. All such fees and reimbursements due
shall be paid to the Placement Agent on or before the Termination Date (in the event such fees and reimbursements are earned or owed as
of the Termination Date) or upon the closing of the Offering or any applicable portion thereof (in the event such fees are due pursuant
to the terms of Section 1 hereof).
(c) Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates to pursue, investigate, analyze,
invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other
than the Company. As used herein (i) “Persons” 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 and (ii) “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 of 1933, as amended (the “Securities Act”).
Section 2. Representations,
Warranties and Covenants of the Company. The Company hereby represents, warrants and covenants to the Placement Agent as of the date
hereof, and as of each Closing Date, unless such representation, warranty or agreement specifies a different date or time, as follows:
(a) Securities
Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”) the Registration
Statement under the Securities Act, which was filed on January 19, 2024, as amended, and declared effective on February 12, 2024 for the
registration of the Securities under the Securities Act. Following the determination of pricing among the Company and the prospective
Purchasers introduced to the Company by Placement Agent, the Company will file with the Commission pursuant to Rules 430A and 424(b) under
the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated
thereunder, a final prospectus relating to the placement of the Securities, their respective pricings and the plan of distribution thereof
and will advise the Placement Agent of all further information (financial and other) with respect to the Company required to be set forth
therein. Such registration statement, at any given time, including the exhibits thereto filed at such time, as amended at such time, is
hereinafter called the “Registration Statement”; such prospectus in the form in which it appears in the Registration
Statement at the time of effectiveness, is hereinafter called the “Preliminary Prospectus”; and the final prospectus,
in the form in which it will be filed with the Commission pursuant to Rules 430A and/or 424(b) (including the Preliminary Prospectus
as it may be amended or supplemented) is hereinafter called the “Final Prospectus.” The Registration Statement at the
time it originally became effective is hereinafter called the “Original Registration Statement.” Any reference in this
Agreement to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated Documents”), if
any, which were or are filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), at any given
time, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date
of the Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. All references
in this Agreement to financial statements and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration Statement, the
Preliminary Prospectus or the Final Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement,
the Preliminary Prospectus or the Final Prospectus, as the case may be. As used in this paragraph and elsewhere in this Agreement, “Time
of Sale Disclosure Package” means the Preliminary Prospectus, the Transaction Documents, the final terms of the Offering provided
to the Purchasers (orally or in writing), and any issuer free writing prospectus as defined in Rule 433 of the Act (each, an “Issuer
Free Writing Prospectus”), if any, that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Time of Sale Disclosure Package. The term “any Prospectus” shall mean, as the context requires, the Preliminary Prospectus,
the Final Prospectus and any supplement to either thereof. The Company has not received any notice that the Commission has issued or intends
to issue a stop order suspending the effectiveness of the Registration Statement or the use of the Preliminary Prospectus or the Final
Prospectus or intends to commence a proceeding for any such purpose.
(b) Assurances.
The Original Registration Statement, as amended, (and any further documents to be filed with the Commission) contains all exhibits and
schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time
it became effective, complied in all material respects with the Securities Act and the applicable Rules and Regulations and did not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Final Prospectus, as of its date, complied or will comply in all material respects with the Securities
Act and the applicable Rules and Regulations. The Final Prospectus, as amended or supplemented, did not and will not contain as of
the date thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations promulgated thereunder,
and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference in the
Final Prospectus), in light of the circumstances under which they were made not misleading. No post-effective amendment to the Registration
Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental
change in the information set forth therein is required to be filed with the Commission. Except for this Agreement and the Transaction
Documents, there are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that
(i) have not been filed as required pursuant to the Securities Act or (ii) will not be filed within the requisite time period
under the Rules and Regulations. Except for this Agreement and the Transaction Documents, there are no contracts or other documents
required to be described in the Final Prospectus, or to be filed as exhibits or schedules to the Registration Statement, which have not
been described or filed as required. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Placement Agent specifically for use in the preparation thereof.
(c) Offering
Materials. Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to each
Closing Date, any offering material in connection with the offering and sale of the Securities other than the Time of Sale Disclosure
Package.
(d) Authorization; Enforcement. The Company has full legal right, power and authority to enter into this Agreement and perform the
transactions contemplated hereby. This Agreement has 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.
(e) No Conflicts. The execution, delivery and performance by the Company of this Agreement, the Transaction Documents and the transactions
contemplated pursuant to the Time of Sale Disclosure Package, the issuance and sale of the Securities and the consummation by it of the
transactions contemplated hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision
of the Company’s, or any of its subsidiaries’, certificate or articles of incorporation, bylaws or other organizational or
charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become
a default) under, result in the creation of any lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction upon any of the properties or assets of the Company, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a debt or otherwise) or other understanding to which the Company is a party or by which any property or asset of the Company
is bound or affected, or (iii) subject to any required approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected; except in the
case of each of clauses (ii) and (iii), such as would not reasonably be expected to result in a material adverse effect on: (x) the
legality, validity or enforceability of any Transaction Document; (y) the results of operations, assets, business, prospects or condition
(financial or otherwise) of the Company; or (z) the Company’s ability to perform in any material respect on a timely basis
its obligations under any Transaction Document (any of (x), (y), or (z), a “Material Adverse Effect”).
(f) Reliance. The Company has not relied upon the Placement Agent or legal counsel for the Placement Agent for any legal, tax or accounting
advice in connection with the offering and sale of the Securities.
(g) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E
of the Exchange Act (“Forward-Looking Statement”) contained in the Time of Sale Disclosure Package has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith. The Forward-Looking Statements incorporated by reference
in the Registration Statement and the Prospectus (i) are within the coverage of the safe harbor for Forward Looking Statements set
forth in Section 27A of the Securities Act, Rule 175(b) under the Securities Act or Rule 3b-6 under the Exchange Act,
as applicable, (ii) were made by the Company with a reasonable basis and in good faith and reflect the Company’s good faith
commercially reasonable best estimate of the matters described therein, and (iii) have been prepared in accordance with Item 10 of
Regulation S-K under the Securities Act.
(h) Representations and Warranties Incorporated by Reference. Each of the representations and warranties (together with any related
disclosure schedules thereto) made by the Company to the Purchasers in the Purchase Agreement is hereby incorporated herein by reference
(as though fully restated herein) and is hereby made to, and in favor of, the Placement Agent.
(i) FINRA Affiliations. There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the
knowledge of the Company, any 5.0% or greater stockholder of the Company.
Section 3. Delivery
and Payment. Each Closing shall occur at the offices of Blank Rome LLP, located at 1271 Avenue of the Americas, New York, New York
10020 (“Placement Agent Counsel”) (or at such other place as shall be agreed upon by the Placement Agent and the Company,
including remotely via electronic transmission). Subject to the terms and conditions hereof and of the Purchase Agreement, at each Closing,
payment of the purchase price for the Securities sold on such Closing Date shall be made by Federal Funds wire transfer, against delivery
of such Securities, and such Securities shall be registered in such name or names and shall be in such denominations, as the Placement
Agent may request at least one business day before the Closing Date. Deliveries of the documents with respect to the purchase of the Securities,
if any, shall be made at the offices of Placement Agent Counsel. All actions taken at a Closing shall be deemed to have occurred simultaneously.
Section 4. Covenants
and Agreements of the Company. The Company further covenants and agrees with the Placement Agent as follows:
(a) Registration Statement Matters. The Company will advise the Placement Agent promptly after it receives notice thereof of the time
when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Final Prospectus has been
filed and will furnish the Placement Agent with copies thereof. The Company will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the
Exchange Act subsequent to the date of any Prospectus and for so long as the delivery of a prospectus is required in connection with the
Offering. The Company will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission
to amend the Registration Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto
or any order directed at any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending
the use of the Preliminary Prospectus or the Final Prospectus or any prospectus supplement or any amendment or supplement thereto or any
post-effective amendment to the Registration Statement, of the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, of the institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its
best efforts to prevent the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any
such stop order or order or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting
of such order at the earliest possible moment, or will file a new registration statement and use its best efforts to have such new registration
statement declared effective as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b),
430A, 430B and 430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and
will use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely
manner by the Commission.
(b) Blue Sky Compliance. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities
for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably
request and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required
to produce any new disclosure document. The Company will, from time to time, prepare and file such statements, reports and other documents
as are or may be required to continue such qualifications in effect for so long a period as the Placement Agent may reasonably request
for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration
of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of
any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption,
the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(c) Amendments and Supplements to a Prospectus and Other Matters. The Company will comply with the Securities Act and the Exchange
Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required
by law to be delivered in connection with the distribution of Securities contemplated by the Incorporated Documents or any Prospectus
(the “Prospectus Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in
the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents
or any Prospectus in order to make the statements therein, in light of the circumstances under which they were made, as the case may be,
not misleading, or if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under
the Exchange Act any Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and
furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement
to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated
Documents and any Prospectus as so amended or supplemented, in light of the circumstances under which they were made, as the case may
be, not misleading, or so that the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented,
will comply with law. Before amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection
with the Offering, the Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file
any such amendment or supplement to which the Placement Agent reasonably objects.
(d) Copies of any Amendments and Supplements to a Prospectus. The Company will furnish the Placement Agent, without charge, during
the period beginning on the date hereof and ending on the later of the last Closing Date of the Offering, as many copies of any Prospectus
or prospectus supplement and any amendments and supplements thereto, as the Placement Agent may reasonably request.
(e) Free Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement Agent,
make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a
“free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with
the Commission or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent expressly consents
in writing to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company covenants that
it shall (i) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) comply with the requirements
of Rule 164 and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(f) Transfer Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Common Stock for at least three
years after the final Closing Date.
(g) Earnings Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but in any
event not later than 18 months after the last Closing Date, the Company will make generally available to its security holders and to the
Placement Agent an earnings statement, covering a period of at least 12 consecutive months beginning after the last Closing Date, that
satisfies the provisions of Section 11(a) and Rule 158 under the Securities Act.
(h) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the
Commission and the market or exchange on which the Common Stock is listed or quoted for trading (the “Trading Market”)
all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange
Act.
(i) Additional Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement
Agent or the Purchasers deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably
acceptable to the Placement Agent and the Purchasers. The Company agrees that the Placement Agent may rely upon, and each is a third party
beneficiary of, the representations and warranties, and applicable covenants, set forth in any such purchase, subscription or other agreement
with Purchasers in the Offering.
(j) No
Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in,
or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any
securities of the Company.
(k) Acknowledgment. The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit
and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement
Agent’s prior written consent.
(l) Publicity. The Company acknowledges and agrees that the Placement Agent may, subsequent to the Closing, make public its involvement
with the Offering. The Company agrees that, until 45 days after the final Closing Date, it will not issue press releases or engage in
any other publicity, without Maxim’s prior written consent (not to be unreasonably withheld), other than normal and customary releases
issued in the ordinary course of the Company’s business. Notwithstanding the foregoing, in no event shall the Company be prohibited
from issuing any press releases or engaging in any other publicity required by law, except that including the name of the Placement Agent
therein shall require the prior written consent of the Placement Agent.
(m) Reliance on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.
(n) Research Matters. By entering into this Agreement, the Placement Agent does not provide any promise, either explicitly or implicitly,
of favorable or continued research coverage of the Company and the Company hereby acknowledges and agrees that the Placement Agent’s
selection as a placement agent for the Offering was in no way conditioned, explicitly or implicitly, on the Placement Agent providing
favorable or any research coverage of the Company. In accordance with the FINRA Rules, the parties acknowledge and agree that the Placement
Agent has not directly or indirectly offered favorable research, a specific rating or a specific price target, or threatened to change
research, a rating or a price target, to the Company or inducement for the receipt of business or compensation.
(o) Trading Market. The Company will use its best efforts to maintain the listing of its Common Stock on the Trading Market for a period
of at least three years after the final Closing Date.
(p) Engagement of Professionals. The Company will retain a nationally recognized, PCAOB registered firm of independent certified public
accountants reasonably acceptable to Maxim for a period of at least three years after the final Closing Date. The Company will retain
a financial public relations firm reasonably acceptable to Maxim for a period of two years after the final Closing Date. The Company will
retain a financial printer reasonably acceptable to Maxim to handle the printing and related aspects of the Offering.
(q) Subsequent Equity Sales. From the date hereof until sixty (60) days after the Closing Date, neither the Company nor any Subsidiary
shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common
Stock Equivalents or (ii) file any registration statement or amendment or supplement thereto, other than the Prospectus or filing a registration
statement on Form S-8 in connection with any employee benefit plan. Notwithstanding the foregoing, this Section 4(q) shall not apply in
respect of an Exempt Issuance. As used herein, an “Exempt Issuance” means the issuance of (a) shares of Common Stock,
options, restricted stock units or other equity-based awards to employees, officers or directors of the Company or its subsidiaries pursuant
to any compensation 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 or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable
for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have
not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange
price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such
securities, and (c) securities issued pursuant to acquisitions or strategic transactions (including, without limitation, joint venture,
co-marketing, co-development or other collaboration agreements) 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 carry no registration rights
that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth above,
and provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries,
an operating company or an 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.
Section 5. Conditions
of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall be subject to the accuracy of the
representations and warranties on the part of the Company set forth in Section 2 hereof, in each case as of the
date hereof and as of each Closing Date as though then made, to the timely performance by each of the Company of its covenants and other
obligations hereunder on and as of such dates, and to each of the following additional conditions:
(a) Accountants’ Comfort Letter. On the date of execution of this Agreement (the “Initial Closing”), the Placement
Agent shall have received, and the Company shall have caused to be delivered to the Placement Agent, a cold “comfort letter”
from BPM LLP, the current independent registered public accounting firm of the Company (“BPM”), addressed to the Placement
Agent, dated as of the Initial Closing, in form and substance satisfactory to the Placement Agent and a bring down comfort letter on the
Closing Date. The letter shall not disclose any change in the condition (financial or other), earnings, operations, business or prospects
of the Company from that set forth in the Incorporated Documents or the applicable Prospectus or prospectus supplement, which, in the
Placement Agent’s sole judgment, is material and adverse and that makes it, in the Placement Agent’s sole judgment, impracticable
or inadvisable to proceed with the Offering of the Securities as contemplated by such Prospectus.
(b) Compliance with Registration Requirements; No Stop Order; No Objection from the FINRA. Each Prospectus shall have been duly filed
with the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing or
suspending the use of any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened
by the Commission; no order having the effect of ceasing or suspending the distribution of the Securities or any other securities of the
Company shall have been issued by any securities commission, securities regulatory authority or stock exchange and no proceedings for
that purpose shall have been instituted or shall be pending or, to the knowledge of the Company, contemplated by any securities commission,
securities regulatory authority or stock exchange; all requests for additional information on the part of the Commission shall have been
complied with; and, prior to the Initial Closing, FINRA shall have raised no objection to the fairness and reasonableness of the placement
terms and arrangements.
(c) Corporate Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement
and each Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a manner reasonably
satisfactory to the Placement Agent’s counsel, and such counsel shall have been furnished with such papers and information as it
may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.
(d) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, in the Placement
Agent’s sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Effect or any material
adverse change or development involving a prospective material adverse change in the condition or the business activities, financial or
otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus (“Material
Adverse Change”).
(e) Opinion of Counsel for the Company. The Placement Agent shall have received on each Closing Date the favorable opinion of Sullivan &
Worcester LLP, legal counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance letter
addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent.
(f) Officers’
Certificate. The Placement Agent shall have received on each Closing Date a certificate of the Company, dated as of such Closing
Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and the Placement Agent
shall be satisfied that, the signers of such certificate have reviewed the Registration Statement, the Incorporated Documents, the
Final Prospectus, the Transaction Documents and this Agreement and to the further effect that:
(j) The representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing Date, and
the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior
to such Closing Date;
(ii) No
stop order suspending the effectiveness of the Registration Statement or the use of the Final Prospectus has been issued and no proceedings
for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened under the Securities Act; no order
having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company has been issued by
any securities commission, securities regulatory authority or stock exchange in the United States and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange in the United States;
(iii) When
the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such certificate,
the Registration Statement and the Incorporated Documents, if any, when such documents became effective or were filed with the Commission,
and any Prospectus, contained all material information required to be included therein by the Securities Act and the Exchange Act and
the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to
the requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder,
as the case may be, and the Registration Statement and the Incorporated Documents, if any, and any Prospectus, did not and do not include
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations
and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Placement Agent expressly for use therein) and, since the effective date of
the Registration Statement, there has occurred no event required by the Securities Act and the rules and regulations of the Commission
thereunder to be set forth in the Incorporated Documents which has not been so set forth; and
(iv) Subsequent
to the respective dates as of which information is given in the Registration Statement, the Incorporated Documents and the Final Prospectus,
there has not been: (a) any Material Adverse Change; (b) any transaction that is material to the Company taken as a whole, except
transactions entered into in the ordinary course of business; (c) any obligation, direct or contingent, that is material to the Company
taken as a whole, incurred by the Company, except obligations incurred in the ordinary course of business; (d) any material change
in the capital stock (except changes thereto resulting from the exercise of outstanding stock options or warrants) or outstanding indebtedness
of the Company; (e) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company; or (f) any
loss or damage (whether or not insured) to the property of the Company which has been sustained or will have been sustained which has
a Material Adverse Effect.
(g) [RESERVED].
(h) Stock Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market,
and the Company shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration of
the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market, nor shall the
Company have received any information suggesting that the Commission or the Trading Market is contemplating terminating such registration
or listing except as disclosed in any Prospectus.
(i) Lock-Up Agreements. At the Initial Closing, the Placement Agent shall have received the executed lock-up agreement, in the form
attached hereto as Exhibit A, from each of the directors, officers, and any holder of 10% or more of the outstanding
Common Stock.
(j) Warrant Agency Agreement. At the Initial Closing, the Company shall have executed and delivered the duly executed one or more warrant
agency agreements by and between the Company and the transfer agent, acting as warrant agent.
(k) Warrants and Pre-Funded Warrants. On each Closing Date, the Company shall deliver or shall cause to be delivered the Pre-Funded
Warrants and the Warrants registered in such name or names and in such denominations as the Placement Agent may request at least one business
day before the applicable Closing Date.
(l) Additional Documents. On or before each Closing Date, the Placement Agent and counsel for the Placement Agent shall have received
such information and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of
the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction
of any of the conditions or agreements, herein contained.
If any condition specified
in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the
Placement Agent by notice to the Company at any time on or prior to a Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Sections 1(a), 7 and 8 shall at all times
be effective and shall survive such termination.
Section 6. Further
Agreements.
(a) Other Activities. The Company acknowledges that the Placement Agent has been, and may in the future be, engaged to provide services
as an underwriter, placement agent, finder, advisor or investment banker to other companies in the industry in which the Company is involved.
The Company acknowledges and agrees that nothing contained in this Agreement shall limit or restrict the right of the Placement Agent
or of any member, manager, officer, employee, agent or representative of the Placement Agent, to be a member, manager, partner, officer,
director, employee, agent or representative of, investor in, or to engage in, any other business, whether or not of a similar nature to
the Company’s business, nor to limit or restrict the right of the Placement Agent to render services of any kind to any other corporation,
firm, individual or association; provided that the Placement Agent and any of its members, managers, officers, employees, agents or representatives
shall not use the Information to the detriment of the Company.
(b) Placement Agent Introductions. For a period of 12 months from the final Closing Date, the Company will pay the Placement Agent
a cash fee equal to 7.0% of the gross proceeds of any equity, equity-linked, or debt financing, or any other capital raising activity
received by the Company from investors introduced to the Company by the Placement Agent.
(c) Right of First Refusal. For a period of twelve (12) months from the Closing Date, the Company grants the Placement Agent the
right of first refusal to act as sole managing underwriter and sole book runner, sole placement agent, or sole sales agent, for any and
all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings for which the Company retains the
service of an underwriter, agent, advisor, finder or other person or entity in connection with such offering during such twelve (12) month
period of the Company, or any successor to or any subsidiary of the Company. The Company shall not offer to retain any entity or person
in connection with any such offering on terms more favorable than terms on which it offers to retain the Placement Agent. Such offer shall
be made in writing in order to be effective. The Placement Agent shall notify the Company within ten (10) business days of its receipt
of the written offer contemplated above as to whether or not it agrees to accept such retention. If the Placement Agent should decline
such retention, the Company shall have no further obligations to the Placement Agent with respect to the offering for which it has offered
to retain the Placement Agent, except as otherwise provided for herein. Such right of first refusal shall not have a duration of more
than three (3) years from commencement of sales.
Section 7. Indemnification
and Contribution.
(a) The Company agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling the Placement Agent
(within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agent,
its affiliates and each such controlling person (the Placement Agent, and each such entity or person. an “Indemnified Person”)
from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of one counsel for all
Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”) as they are incurred
by an Indemnified Person in investigating, preparing, pursuing or defending any action, suit, inquiry, notice of violation, proceeding
or investigation (collectively, an “Action”), whether or not any Indemnified Person is a party thereto, (i) caused by,
or arising out of or in connection with, any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, any Incorporated Document, or any Prospectus or by any omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances under which they were made, not misleading (other than untrue statements
or alleged untrue statements in, or omissions or alleged omissions from, information relating to an Indemnified Person furnished in writing
by or on behalf of such Indemnified Person expressly for use in the Incorporated Documents) or (ii) otherwise arising out of or in
connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement, the transactions contemplated
thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services or transactions; provided, however,
that, in the case of clause (ii) only, the Company shall not be responsible for any Liabilities or Expenses of any Indemnified Person
that are finally judicially determined to have resulted solely from such Indemnified Person’s (x) gross negligence or willful
misconduct in connection with any of the advice, actions, inactions or services referred to above or (y) use of any offering materials
or information concerning the Company in connection with the offer or sale of the Securities in the Offering which were not authorized
for such use by the Company and which use constitutes gross negligence or willful misconduct. The Company also agrees to reimburse each
Indemnified Person for all Expenses as they are incurred in connection with enforcing such Indemnified Person’s rights under this
Agreement.
(b) Upon receipt by an Indemnified Person of actual notice of an Action against such Indemnified Person with respect to which indemnity may
be sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified
Person so to notify the Company shall not relieve the Company from any liability which the Company may have on account of this indemnity
or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced by such failure. The Company shall,
if requested by the Placement Agent, assume the defense of any such Action including the employment of counsel reasonably satisfactory
to the Placement Agent, which counsel may also be counsel to the Company. Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel or (ii) the named
parties to any such Action (including any impeded parties) include such Indemnified Person and the Company, and such Indemnified Person
shall have been advised in the reasonable opinion of counsel that there is an actual conflict of interest that prevents the counsel selected
by the Company from representing both the Company (or another client of such counsel) and any Indemnified Person; provided that the Company
shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel for all Indemnified
Persons in connection with any Action or related Actions, in addition to any local counsel. The Company shall not be liable for any settlement
of any Action effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without
the prior written consent of the Placement Agent (which shall not be unreasonably withheld), settle, compromise or consent to the entry
of any judgment in or otherwise seek to terminate any pending or threatened Action in respect of which indemnification or contribution
may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all Liabilities arising out of such Action for which indemnification
or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.
(c) In the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Company
shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate to reflect
(i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person, on the other
hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause is not
permitted by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement
Agent and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate,
as well as any other relevant equitable considerations; provided that in no event shall the Company contribute less than the amount necessary
to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in excess of the amount of fees
actually received by the Placement Agent pursuant to this Agreement. For purposes of this paragraph, the relative benefits to the Company,
on the one hand, and to the Placement Agent on the other hand, of the matters contemplated by this Agreement shall be deemed to be in
the same proportion as (a) the total value paid or contemplated to be paid to or received or contemplated to be received by the Company
in the transaction or transactions that are within the scope of this Agreement, whether or not any such transaction is consummated, bears
to (b) the fees paid to the Placement Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was
not guilty of fraudulent misrepresentation.
(d) The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services
or transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted solely
from such Indemnified Person’s gross negligence or willful misconduct in connection with any such advice, actions, inactions or
services.
(e) The reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement
and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person’s services
under or in connection with, this Agreement.
Section 8. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the
Company or any person controlling the Company, of its officers, and of the Placement Agent set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement Agent, the Company, or any
of its or their partners, officers or directors or any controlling person, as the case may be, and will survive delivery of and payment
for the Securities sold hereunder and any termination of this Agreement. A successor to a Placement Agent, or to the Company, its directors
or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Agreement.
Section 9. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered, e-mailed or telecopied and confirmed to the parties
hereto as follows:
| If to the Placement Agent: |
| |
| Maxim Group LLC |
| 300 Park Avenue, 16th Floor |
| New York, NY 10022 |
| Attention: Clifford A. Teller, Co-President |
| Email: ecteller@maximgrp.com |
| |
| With a copy to: |
| |
| Blank Rome LLP |
| 1271 Avenue of the Americas |
| New York, New York 10020 |
| Attention: Leslie Marlow, Esq. or Patrick J. Egan, Esq. |
| Email: leslie.marlow@blankrome.com or patrick.egan@blankrome.com |
| |
| If to the Company: |
| |
| WiSA Technologies, Inc. |
| 15268 NW Greenbrier Pkwy |
| Beaverton, Oregon 97006 |
| Attention: Brett Moyer |
| Email: bmoyer@wisatechnologies.com |
| |
| With a copy to: |
| |
| Sullivan & Worcester LLP |
| 1633 Broadway |
| New York, New York 10019 |
| Attention: David E. Danovitch, Esq. |
| Email: ddanovitch@sullivanlaw.com |
Any party hereto may change
the address for receipt of communications by giving written notice to the others.
Section 10. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal
representative, and no other person will have any right or obligation hereunder.
Section 11. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
Section 12. Governing
Law Provisions. This Agreement shall be deemed to have been made and delivered in New York City and both this Agreement and the transactions
contemplated hereby shall be governed as to validity, interpretation, construction, effect and in all other respects by the internal laws
of the State of New York, without regard to the conflict of laws principles thereof. Each of the Placement Agent and the Company: (i) agrees
that any legal suit, action or proceeding arising out of or relating to this Agreement and/or the transactions contemplated hereby shall
be instituted exclusively in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District
of New York (ii) waives any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably
consents to the jurisdiction of the New York Supreme Court, County of New York, or in the United States District Court for the Southern
District of New York in any such suit, action or proceeding. Each of the Placement Agent and the Company further agrees to accept and
acknowledge service of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County
of New York, or in the United States District Court for the Southern District of New York and agrees that service of process upon the
Company mailed by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the
Company, in any such suit, action or proceeding, and service of process upon the Placement Agent mailed by certified mail to the Placement
Agent’s address shall be deemed in every respect effective service process upon the Placement Agent, in any such suit, action or
proceeding. Notwithstanding any provision of this Agreement to the contrary, the Company agrees that neither the Placement Agent nor its
affiliates, and the respective officers, directors, employees, agents and representatives of the Placement Agent, its affiliates and each
other person, if any, controlling the Placement Agent or any of its affiliates, shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to the Company for or in connection with the engagement and transaction described herein except for
any such liability for losses, claims, damages or liabilities incurred by us that are finally judicially determined to have resulted from
the willful misconduct or gross negligence of such individuals or entities. If either party shall commence an action or proceeding to
enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party
for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of
such action or proceeding.
Section 13. General
Provisions.
(a)
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express
or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. Section headings herein
are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
(b)
The Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agent has acted at arm’s
length, are not agents of, and owe no fiduciary duties to the Company or any other person, (ii) the Placement Agent owes the Company
only those duties and obligations set forth in this Agreement and (iii) the Placement Agent may have interests that differ from those
of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Placement Agent arising
from an alleged breach of fiduciary duty in connection with the offering of the Securities.
[The remainder of this page has been intentionally
left blank.]
If the foregoing is in accordance
with your understanding of our agreement, please sign below whereupon this instrument, along with all counterparts hereof, shall become
a binding agreement in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
MAXIM GROUP LLC |
| |
|
| |
|
| |
By: |
/s/
Cliff Teller |
| |
|
Name: Cliff Teller |
| |
|
Title: Co-President |
The foregoing Agreement is
hereby confirmed and accepted as of the date first written above.
| WISA TECHNOLOGIES, INC. |
|
| |
|
| By: |
/s/
Brett Moyer |
|
| |
Name: Brett Moyer |
|
| |
Title: Chief Executive Officer |
|
[Signature Page to Placement Agency Agreement]
Exhibit A
Form of Lock-Up Agreement
Exhibit 4.1
COMMON STOCK PURCHASE WARRANT
WISA
TECHNOLOGIES, INC.
| Warrant Shares: ______ |
Issuance Date: ____, 2024 |
THIS COMMON STOCK PURCHASE
WARRANT (the “Warrant”) certifies that, for value received by the Company, _____ 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 fifth anniversary of the Stockholder Approval Date (the “Termination Date”) but not thereafter, to
subscribe for from WiSA Technologies, Inc., a Delaware corporation (the “Company”), up to ______ shares of Common Stock
(as subject to adjustment hereunder, the “Warrant Shares”). The subscription 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 shall initially be issued and maintained in
the form of a security held in book-entry form and The Depository Trust Company or its nominee (“DTC”) shall initially
be the sole registered holder of this Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant
to the terms of the Warrant Agency Agreement, in which case this sentence shall not apply.
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.
“Bid Price”
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 bid price of the Common Stock for the time in question (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 on 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 Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to
remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar
orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic
funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally are open for use by customers
on such day.
“Certificate of Incorporation”
means the Company’s certificate of incorporation, as amended, filed with the Secretary of State of the State of Delaware.
“Convertible Securities”
means any shares or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible
into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock.
“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 shares of Common
Stock, including, without limitation, any debt, preferred shares, 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, shares of Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“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.
“Purchase Agreement”
means the Securities Purchase Agreement, dated as of February 12, 2024 among the Company and certain purchasers signatory thereto, as
amended, modified or supplemented from time to time in accordance with its terms.
“Registration Statement”
means the Company’s registration statement on Form S-1 (File No. 333-276631).
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“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 the Warrants and all 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.
“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.
“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.
“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 is then reported on 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 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 Warrants then outstanding and reasonably acceptable to the Company, the
fees and expenses of which shall be paid by the Company.
“Warrant Agency Agreement”
means that certain warrant agency agreement, dated on or about the Issuance Date, between the Company and the Warrant Agent.
“Warrant Agent”
means the Transfer Agent and any successor warrant agent of the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration 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 Common Stock specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise.
No ink original Notice of Exercise shall 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 subscribed 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 as
soon as reasonably practicable after 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 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.
Notwithstanding the foregoing
in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this Warrant held
in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect exercises made
pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate instruction form
for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation, as applicable),
subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant Agency Agreement,
in which case this sentence shall not apply.
b) Exercise Price. The
exercise price per share of Common Stock under this Warrant shall be $0.065, subject to adjustment hereunder (the “Exercise Price”).
c) Cashless Exercise.
If at the time of exercise hereof, there is no effective registration statement registering, or the prospectus contained therein is not
available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in whole or in part, at such
time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to
the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = as applicable: (i) the VWAP on
the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and
delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a)
hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated
under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately
preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported
by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice of Exercise
if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours
thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section
2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day
and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours”
on such Trading Day;
(B) = the Exercise Price of this Warrant,
as adjusted hereunder; and
(X) = the number of Warrant Shares that
would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash
exercise rather than a cashless exercise.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrant being exercised. The Company agrees not
to take any position contrary to this Section 2(c).
Notwithstanding
anything to the contrary herein, the Holder may also effect an “alternative cashless exercise” on or after the Initial Exercise
Date. In such event, the aggregate number of Warrant Shares issuable in such alternative cashless exercise pursuant to any given Notice
of Exercise electing to effect an alternative cashless exercise shall equal the product of (x) the aggregate number of Warrant Shares
that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a
cash exercise rather than a cashless exercise and (y) 0.65.
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 DTC through its Deposit
or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there
is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder
or (B) this Warrant is being exercised via cashless exercise, 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 (other than in
the instance of a cashless exercise) 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 (other than in the instance of a cashless exercise) 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”).
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 (other than in the case of a cashless
exercise) 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 (based on the VWAP of the Common Stock
on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 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 with respect to the Common Stock 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, 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 (other than as a result of failure of the Holder to
timely deliver the aggregate Exercise Price, unless the Warrant is validly exercised by means of a cashless 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. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As
to any fraction of a share which the Holder would otherwise be entitled to subscribe for 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 down to the next whole share.
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; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto; and (ii) the Company shall use its best
efforts to pay, or procure payment of issue or stamp taxes levied in connection with the issuance of the Warrant or Warrant Shares to
the Holder (“Relevant Taxes”). The Holder agrees to cooperate with the Company and provide all necessary information
and documentation to the Company in a timely manner (and in any event within 10 Business Days of request) to enable the Company to procure
payment of any Relevant Taxes and facilitate the making of any necessary filings in respect of Relevant Taxes required to be made within
applicable time limits. The Company shall not be liable for any Relevant Taxes or any penalty, fine, surcharge, interest, charge, cost
or other similar imposition arising in respect of Relevant Taxes to the extent that such amount arises or is increased as a result of
any failure by a Holder to timely provide the Company with any information or documentation requested pursuant to this Section 2(d)(vi).
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, and a submission of a Notice of Exercise shall be deemed a representation and
warranty by the Holder of the foregoing 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% (or, upon election by the Holder
prior to the issuance of any Warrants, 9.99%) of the number of shares of Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder may, upon notice to the Company, 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 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.
Section 3. Certain Adjustments.
a) Share Dividends and Splits.
If the Company, at any time while this Warrant is outstanding: (i) pays a share dividend or otherwise makes a distribution or distributions
on its Common Stock or any other equity or equity equivalent securities payable in Common Stock (which, for avoidance of doubt, shall
not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common
Stock into a larger number of shares, (iii) combines (including by way of reverse share split) outstanding shares of Common Stock into
a smaller number of shares, or (iv) issues by reclassification of shares of Common Stock any share capital 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) Adjustment Upon Issuance
of Shares of Common Stock. If, at any time while this Warrant is outstanding (such period, the “Adjustment Period”),
the Company issues, sells, enters into an agreement to sell, or grants any option to purchase, or sells, enters into an agreement to sell,
or grants any right to reprice, or otherwise disposes of or issues (or announces any offer, sale, grant or any option to purchase or other
disposition), or, in accordance with this Section 3(b), is deemed to have issued or sold, any shares of Common Stock or Common Stock Equivalents
(excluding any Excluded Securities (as defined below) issued or sold or deemed to have been issued or sold) for a consideration per share
less than a price equal to the Exercise Price in effect immediately prior to such issue or sale or deemed issuance or sale (such lower
price, the “Base Share Price,” and such Exercise Price then in effect is referred to as the “Applicable Price”)
(the foregoing a “Dilutive Issuance”), then simultaneously with the consummation (or, if earlier, the announcement)
of such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the Base Share Price, provided that,
the Exercise Price will not be less than $0.0401 (subject to adjustment for reverse and forward stock splits, recapitalizations and similar
transactions following the Issue Date). If the Company enters into a Variable Rate Transaction (as defined below), the Company shall be
deemed to have issued shares of Common Stock or shares of Common Stock Equivalents at the lowest possible price, conversion price or exercise
price at which such securities may be issued, converted or exercised. “Excluded Securities” means any issuance of shares
of Common Stock, restricted share units, Options, warrants and/or Convertible Securities (i) under the Company’s current or future
equity incentive plans or issued to employees, directors, consultants or officers as compensation or consideration in the ordinary course
of business, including any issuance of Options (and the underlying shares of Common Stock) in exchange for Options issued under the Company’s
equity incentive plans; provided, that with respect to consultants only, such issuances do not exceed 1 million shares of Common Stock
(as adjusted for stock splits, reverse stock splits, stock dividends, stock combinations and similar events) in any 12 month period, (ii)
issued pursuant to agreements, Options, restricted share units, Convertible Securities or Adjustment Rights (as defined below) existing
as of the date hereof, (iii) issued pursuant to acquisitions (whether by merger, consolidation, purchase of equity, purchase of assets,
reorganization or otherwise), mergers, consolidations, reorganizations or strategic transactions approved by a majority of the disinterested
directors of the Company, 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, an operating company or an owner of an asset in a business complementary 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, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration
rights that require or permit the filing of any registration statement in connection therewith or (iv) to which a majority-in-interest
of Holders of the Warrants consent in writing. “Adjustment Right” means any right granted with respect to any securities
issued in connection with, or with respect to, any issuance or sale (or deemed issuance or sale in accordance with this Section 3(b))
of shares of Common Stock (other than rights of the type described in Sections 3(a) through (e)) that could result in a decrease in the
net consideration received by the Company in connection with, or with respect to, such securities (including, without limitation, any
cash settlement rights, cash adjustment or other similar rights). “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 shares of Common Stock or (ii) enters into, or effects a transaction
under, any agreement, including, but not limited to, an equity line of credit, but excluding an “at-the-market offering”,
whereby the Company may issue securities at a future determined price. For all purposes of the foregoing, the following shall be applicable:
(i) Issuance
of Options. If the Company in any manner grants, issues or sells any Options (or enters into any agreement to grant, issue or sell)
and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon
conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the
terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued
and sold by the Company at the time of the granting or sale of such Option for such price per share. For purposes of this Section 3(b)(i),
the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Options or
upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to
the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable
by the Company with respect to any one share of Common Stock upon the granting or sale of such Option, upon exercise of such Option and
upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms
thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable (or may become issuable
assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible
Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid
or payable to the holder of such Option (or any other Person) upon the granting, issuance or sale of such Option, upon exercise of such
Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant
to the terms thereof plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such
Option (or any other Person). Except as contemplated below, no further adjustment of the Exercise Price shall be made upon the actual
issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the
terms of or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.
(ii) Issuance
of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Convertible
Securities and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or
exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be
deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution
of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section
3(b)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise
or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts
of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or
pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such
Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security
for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise
or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such
Convertible Security (or any other Person) upon the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of
such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of
such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Exercise Price shall be made
upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise
pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for
which adjustment of this Warrant has been or is to be made pursuant to other provisions of this Section 3(b), except as contemplated below,
no further adjustment of the Exercise Price shall be made by reason of such issuance or sale.
(iii) Change
in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities
are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other than proportional
changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 3(a)), the Exercise Price
in effect at the time of such increase or decrease shall be adjusted to the Exercise Price which would have been in effect at such time
had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased
or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section 3(b)(iii),
if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible Security that was outstanding
as of the Issuance Date) are increased or decreased in the manner described in the immediately preceding sentence, then such Option or
Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have
been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 3(b) shall be made if such adjustment
would result in an increase of the Exercise Price then in effect.
(iv) Calculation
of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”,
and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities” and together with the
Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration per share
of Common Stock with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit, (y) if such
Primary Security is an Option and/or Convertible Security, the lowest price per share for which one share of Common Stock is at any time
issuable upon the exercise or conversion of the Primary Security in accordance with Sections 3(b)(i) or 3(b)(ii) above and (z) the lowest
VWAP of the Common Stock on any Trading Day during the five (5) Trading Day period (the “Adjustment Period”) immediately
following the public announcement of such Dilutive Issuance (for the avoidance of doubt, if such public announcement is released prior
to the opening of the principal Trading Market of the Common Stock on a Trading Day, such Trading Day shall be the first Trading Day in
such five Trading Day period and if this Warrant is exercised, on any given Exercise Date during any such Adjustment Period, solely with
respect to such portion of this Warrant converted on such applicable Exercise Date, such applicable Adjustment Period shall be deemed
to have ended on, and included, the Trading Day immediately prior to such Exercise Date). If any shares of Common Stock, Options or Convertible
Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be
the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are
issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of
such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration
received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading
Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners
of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor
will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such
shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or
publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach agreement within
ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such
consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation Event by an independent,
reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall be final and binding upon
all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.
c) Subsequent Rights Offerings.
In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any Common Stock Equivalents
or rights to purchase shares, warrants, securities or other property pro rata to the record holders of any class of 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 (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights,
or, if no such record is taken, 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 (provided, however, that, to the extent that the Holder’s right to participate
in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled
to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase
Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its
right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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 (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution,
or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation
in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any such Distribution
would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such
Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent)
and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto
would not result in the Holder exceeding the Beneficial Ownership Limitation).
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, except to the extent subject to an adjustment pursuant to Section 3(a),
(b), (c), or (d), (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, in the event of a Fundamental Transaction, the Company or any Successor Entity
(as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation
of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase
this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining
unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,
that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of
Directors, the Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration
(and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to
the holders of shares of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in
the form of cash, shares or any combination thereof, or whether the holders of shares of Common Stock are given the choice to receive
from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if
holders of shares of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders
of shares of Common Stock will be deemed to have received shares of common stock of the Successor Entity (which Entity may be the Company
following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this
Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of the
day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding
to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental
Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from
the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public
announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price per share used in such calculation shall
be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any,
being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding
the public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental Transaction,
if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(e) and (D) a remaining option time
equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination
Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds
(or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation
of the Fundamental Transaction. 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 instruct the
Warrant Agent in writing to 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 Warrant Agent shall have no duty, responsibility or obligation to determine the correctness of any provisions contained
in such agreement or such notice, including but not limited to any provisions relating either to the kind or amount of securities or other
property receivable upon exercise of warrants or with respect to the method employed and provided therein for any adjustments, and shall
be entitled to rely conclusively for all purposes upon the provisions contained in any such agreement. 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) Share Combination Event
Adjustment. In addition to the adjustments set forth in this Section 3, if at any time on or after the Issue Date there occurs any
share split, reverse share split, share dividend, share combination recapitalization or other similar transaction involving the shares
of Common Stock (each, a “Share Combination Event”, and such date thereof, the “Share Combination Event Date”)
and the lowest VWAP during the period commencing five (5) consecutive Trading Days immediately preceding and through the five (5) consecutive
Trading Days immediately following the Share Combination Event Date (the “Event Market Price”) (provided if the Share
Combination Event is effective after close of Trading on the primary Trading Market, then commencing on the next Trading Day which period
shall be the “Share Combination Adjustment Period”) is less than the Exercise Price then in effect (after giving effect
to the adjustment in clause 3(a) above), then at the close of trading on the primary Trading Market on the last day of the Share Combination
Adjustment Period, the Exercise Price then in effect on such 5th Trading Day shall be reduced (but in no event increased) to the Event
Market Price and the number of Warrant Shares issuable upon exercise of this Warrant hereunder (such resulting number, the “Share
Combination Issuable Shares”) shall be increased such that the Aggregate Exercise Price payable hereunder, after taking into
account the decrease in the Exercise Price, shall be equal to the Aggregate Exercise Price on the Issuance Date for the Warrant Shares
then outstanding.
g) Calculations. All
calculations under this Section 3 shall be made 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.
h) 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.
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, (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 20 calendar
days prior to the applicable record or effective date hereinafter specified, 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. This
Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the
Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed
by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee
or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the
assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder
has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days
of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned
in accordance herewith, may be exercised by a new holder for the subscription for Warrant Shares without having a new Warrant issued.
b) New Warrants. If this
Warrant is not held in global form through DTC, 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.
c) Warrant Register.
The Warrant Agent shall register this Warrant, upon records to be maintained by the Warrant Agent for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company and the Warrant Agent may deem and treat
the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
Section 5. 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.
Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or to
receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required to net cash settle
an exercise of this Warrant.
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.
The Company covenants that, following the occurrence of a Capital Event and thereafter during the period the Warrant is outstanding, it
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 articles 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 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 and the Holder does not utilize
cashless exercise, 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 Holder or
the beneficial owner of this Warrant, on the other hand.
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.
p) Warrant Agency Agreement.
If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued subject to the Warrant Agency
Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant Agency Agreement, the provisions
of this Warrant shall govern and be controlling.
********************
(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 |
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 (check applicable box):
¨
in lawful money of the United States; or
¨
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares issuable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(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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|
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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 A
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
| Name: |
|
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(Please Print) |
| |
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| Address: |
|
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(Please Print) |
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| Phone Number: |
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| Email Address: |
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| Dated: _______________ __, ______ |
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| Holder’s Signature: _______________ |
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| Holder’s Address: _______________ |
|
Exhibit 99.1
WiSA Technologies Announces Pricing of $10.0
Million Public Offering
BEAVERTON, Ore., February 12, 2024 -- (BUSINESS
WIRE)--WiSA Technologies, Inc. (Nasdaq: WISA or the “Company”), a leading innovator in wireless audio technology for intelligent
devices and next-generation home entertainment systems, today announced the pricing of a public offering of 153,840,000 units, with each
unit consisting of one share of common stock (or pre-funded warrant in lieu thereof) and one warrant, each to purchase one (1) share of
common stock for gross proceeds of approximately $10.0 million. Each unit was sold at an effective public offering price of $0.065. The
warrants will be exercisable on the date of stockholder approval at an exercise price of $0.065 and will expire five years from the date
of such stockholder approval.
Maxim Group LLC is acting as the sole placement
agent for the offering. The offering is expected to close on February 13, 2024, subject to customary closing conditions.
The securities described above were offered
pursuant to a registration statement on Form S-1, as amended (File No. 333-276631) (the “Registration Statement”), which was
declared effective by the Securities and Exchange Commission (the "SEC") on February 12, 2024. The offering was made only by
means of a prospectus which is a part of the Registration Statement. A final prospectus relating to the offering has been filed with the
SEC. Copies of the final prospectus relating to this offering may be obtained from Maxim Group LLC, 300 Park Avenue, 16th Floor, New York,
NY 10022, at (212) 895-3745.
This press release shall not constitute an
offer to sell or a solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities
in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification
under the securities laws of any such state or other jurisdiction.
About WiSA Technologies, Inc.
WiSA Technologies, Inc. (NASDAQ: WISA) is a leading
provider of immersive, wireless sound technology for intelligent devices and next-generation home entertainment systems. Working with
leading CE brands and manufacturers such as Harman International, a division of Samsung; LG; Hisense; TCL; Bang & Olufsen; Platin
Audio; and others, the company delivers immersive wireless sound experiences for high-definition content, including movies and video,
music, sports, gaming/esports, and more. WiSA Technologies, Inc. is a founding member of WiSA™ (the Wireless Speaker and Audio Association)
whose mission is to define wireless audio interoperability standards as well as work with leading consumer electronics companies, technology
providers, retailers, and ecosystem partners to evangelize and market spatial audio technologies driven by WiSA Technologies, Inc. The
company is headquartered in Beaverton, OR with sales teams in Taiwan, China, Japan, Korea, and California.
© 2024 WiSA Technologies, Inc. All rights
reserved. WiSA Technologies, Inc. and the WiSA Technologies, Inc. logo are trademarks of WiSA Technologies, Inc. The WiSA logo, WiSA®,
WiSA Ready™, and WiSA Certified™ are trademarks and certification marks of WiSA, LLC. Third-party trade names, trademarks
and product names are the intellectual property of their respective owners.
Forward-Looking Statements
This press release contains forward-looking statements,
which are not historical facts, within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. Forward-looking statements include statements herein with respect to the expected closing date of the
offering. Our actual results, performance or achievements may differ materially from those expressed or implied by these forward-looking
statements. In some cases, you can identify forward-looking statements by the use of words such as "may," "could,"
"expect," "intend," "plan," "seek," "anticipate," "believe," "estimate,"
"predict," "potential," "continue," "likely," "will," "would" and variations
of these terms and similar expressions, or the negative of these terms or similar expressions. Such forward-looking statements are necessarily
based upon estimates and assumptions that, while considered reasonable by us and our management, are inherently uncertain. Readers are
cautioned not to place undue reliance on these forward-looking statements. Actual results may differ materially from those indicated by
these forward-looking statements as a result of risks and uncertainties including risks related to our ability to satisfy the closing
conditions; general economic and market conditions; our current liquidity position; the need to obtain additional financing to support
ongoing operations; the interoperability of WiSA E software; our ability to continue as a going concern; our ability to maintain the listing
of our common stock on Nasdaq; our ability to predict the timing of design wins entering production and the potential future revenue associated
with our design wins; our success in porting WiSA E software to various platforms; our rate of growth; our ability to predict direct and
indirect customer demand for our existing and future products and to secure adequate manufacturing capacity; our ability to hire, retain
and motivate employees; the effects of competition, including price competition within our industry segment; technological, regulatory
and legal developments that uniquely or disproportionately impact our industry segment; developments in the economy and financial markets
and other risks detailed from time to time in WiSA Technologies’ filings with the Securities and Exchange Commission. The information
in this press release is provided only as of the date of this press release, and WiSA undertakes no obligation to update any forward-looking
statements contained in this press release based on new information, future events, or otherwise, except as required by law. WiSA disclaims
any obligation to update these forward-looking statements.
Exhibit 99.2
WiSA Technologies Announces Closing of $10.0
Million Public Offering
BEAVERTON, Ore., February 13, 2024--(BUSINESS
WIRE)--WiSA Technologies, Inc. (Nasdaq: WISA or the “Company”), a leading innovator in wireless audio technology for intelligent
devices and next-generation home entertainment systems, today announced the closing of its previously announced public offering of 153,840,000
units, with each unit consisting of one share of common stock (or pre-funded warrant in lieu thereof) and one warrant, each to purchase
one (1) share of common stock for gross proceeds of approximately $10.0 million. Each unit was sold at an effective public offering price
of $0.065. The warrants will be exercisable on the date of stockholder approval at an exercise price of $0.065 and will expire five years
from the date of such stockholder approval.
Maxim Group LLC acted as the sole placement agent
for the offering.
The securities described above were offered
pursuant to a registration statement on Form S-1, as amended (File No. 333-276631) (the “Registration Statement”), which was
declared effective by the Securities and Exchange Commission (the "SEC") on February 12, 2024. The offering was made only by
means of a prospectus which is a part of the Registration Statement. A final prospectus relating to the offering has been filed with the
SEC. Copies of the final prospectus relating to this offering may be obtained from Maxim Group LLC, 300 Park Avenue, 16th Floor, New York,
NY 10022, at (212) 895-3745.
This press release shall not constitute an
offer to sell or a solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities
in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification
under the securities laws of any such state or other jurisdiction.
About WiSA Technologies, Inc.
WiSA Technologies, Inc. (NASDAQ: WISA) is a leading
provider of immersive, wireless sound technology for intelligent devices and next-generation home entertainment systems. Working with
leading CE brands and manufacturers such as Harman International, a division of Samsung; LG; Hisense; TCL; Bang & Olufsen; Platin
Audio; and others, the company delivers immersive wireless sound experiences for high-definition content, including movies and video,
music, sports, gaming/esports, and more. WiSA Technologies, Inc. is a founding member of WiSA™ (the Wireless Speaker and Audio Association)
whose mission is to define wireless audio interoperability standards as well as work with leading consumer electronics companies, technology
providers, retailers, and ecosystem partners to evangelize and market spatial audio technologies driven by WiSA Technologies, Inc. The
company is headquartered in Beaverton, OR with sales teams in Taiwan, China, Japan, Korea, and California.
© 2024 WiSA Technologies, Inc. All rights
reserved. WiSA Technologies, Inc. and the WiSA Technologies, Inc. logo are trademarks of WiSA Technologies, Inc. The WiSA logo, WiSA®,
WiSA Ready™, and WiSA Certified™ are trademarks and certification marks of WiSA, LLC. Third-party trade names, trademarks
and product names are the intellectual property of their respective owners.
Forward-Looking Statements
This press release contains forward-looking statements,
which are not historical facts, within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. Our actual results, performance or achievements may differ materially from those expressed or implied
by these forward-looking statements. In some cases, you can identify forward-looking statements by the use of words such as "may,"
"could," "expect," "intend," "plan," "seek," "anticipate," "believe,"
"estimate," "predict," "potential," "continue," "likely," "will," "would"
and variations of these terms and similar expressions, or the negative of these terms or similar expressions. Such forward-looking statements
are necessarily based upon estimates and assumptions that, while considered reasonable by us and our management, are inherently uncertain.
Readers are cautioned not to place undue reliance on these forward-looking statements. Actual results may differ materially from those
indicated by these forward-looking statements as a result of risks and uncertainties including risks related to our ability to satisfy
the closing conditions; general economic and market conditions; our current liquidity position; the need to obtain additional financing
to support ongoing operations; the interoperability of WiSA E software; our ability to continue as a going concern; our ability to maintain
the listing of our common stock on Nasdaq; our ability to predict the timing of design wins entering production and the potential future
revenue associated with our design wins; our success in porting WiSA E software to various platforms; our rate of growth; our ability
to predict direct and indirect customer demand for our existing and future products and to secure adequate manufacturing capacity; our
ability to hire, retain and motivate employees; the effects of competition, including price competition within our industry segment; technological,
regulatory and legal developments that uniquely or disproportionately impact our industry segment; developments in the economy and financial
markets and other risks detailed from time to time in WiSA Technologies’ filings with the Securities and Exchange Commission. The
information in this press release is provided only as of the date of this press release, and WiSA undertakes no obligation to update any
forward-looking statements contained in this press release based on new information, future events, or otherwise, except as required by
law. WiSA disclaims any obligation to update these forward-looking statements.
v3.24.0.1
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