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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):
May 15, 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)
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 or Rule 12b-2 of the Securities Exchange Act of 1934.
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 May 15, 2024, WiSA
Technologies, Inc. (the “Company”), closed (the “Closing”) the offerings (the “Offerings”) pursuant
to that certain securities purchase agreement dated May 13, 2024 (the “Purchase Agreement”). In the Closing, the Company issued
and sold to the purchasers signatory to the Purchase Agreement (the “Purchasers”) (a) in a registered direct offering, 785,000
shares (the “Shares”) of common stock, par value $0.0001 per share (the “Common Stock”), of the Company, at an
offering price of $3.31 per share, and (b) in a concurrent private placement, common stock purchase warrants (the “Warrants”)
exercisable for an aggregate of up to 785,000 shares of Common Stock, at an exercise price of $3.18 per share (the “Warrant Shares”),
for aggregate gross proceeds of approximately $2.6 million.
The Shares issued in
the registered direct offering were offered pursuant to the Company’s shelf registration statement on Form S-3 (File 333-267211)
(the “Shelf Registration Statement”), initially filed by the Company with the Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “Securities Act”), on September 1, 2022 and declared effective on September
13, 2022.
Private Placement
Warrants
The Warrants are immediately
exercisable upon issuance and expire on the fifth anniversary of the issuance date of the Warrants. Once issued, the Warrants may be exercised,
in certain circumstances, on a cashless basis pursuant to the formula contained in the Warrants. The holder of a Warrant may also effect
an “alternative cashless exercise” upon stockholder approval of the issuance of the shares of Common Stock issuable upon exercise
of such “alternative cashless exercise”. 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.
The Warrants and the
Warrant Shares were not registered under the Securities Act, and were offered pursuant to an exemption from the registration requirements
of the Securities Act provided in Section 4(a)(2) of the Securities Act and/or Rule 506(b) promulgated thereunder.
Obligations Under
the Purchase Agreement
Pursuant to the Purchase Agreement, the Company
agreed to, among other things:
|
(a) |
subject to certain exceptions, (i) not 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 30 days after the closing date of the Offerings, and (ii) not issue certain securities if the issuance would constitute a Variable Rate Transaction (as such term is defined in the Purchase Agreement) for a period of six months from the closing date of the Offerings, in each case unless the Company is required to complete a financing prior to the applicable date in order to satisfy Nasdaq’s continued listing requirements; |
|
(b) |
as soon as practicable (and in any event by May 30, 2024), file a registration statement on Form S-1 or another appropriate form providing for the resale of the Warrant Shares, use commercially reasonable efforts to cause such registration statement to become effective within 90 days of the closing date of the Offerings, and keep such registration statement effective at all times until no Purchaser owns any Warrants or Warrant Shares issuable upon exercise thereof; and |
|
|
|
|
(c) |
hold a meeting of stockholders of the Company for the purpose of approving the “alternative cashless exercise” feature in the Warrants, which meeting shall be held on or before September 30, 2024. |
Placement Agency Agreement
In connection with the
Offerings, on May 13, 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 “reasonable
best efforts” basis in connection with the Offerings. Pursuant to the Placement Agency Agreement, the Company paid the Placement
Agent an aggregate fee equal to 8.0% of the gross proceeds raised in the Offerings and reimbursed the Placement Agent $50,000 for expenses
in connection with the Offerings.
Pursuant to the Placement
Agency Agreement, the Company agreed, among other things and subject to certain exceptions, not to, without the prior written consent
of the Placement Agent, 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 30 days after the closing date of the Offerings.
The foregoing does not purport to be a complete
description of each of the Placement Agency Agreement, Warrants, and Purchase 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, and 10.1, respectively, to this Current Report on Form
8-K (this “Form 8-K”) and incorporated herein by reference.
Sullivan & Worcester LLP, counsel to the Company,
delivered an opinion as to the validity of the Shares, a copy of which is attached to this Form 8-K as Exhibit 5.1 and is incorporated
herein by reference.
Item 3.02. |
Unregistered Sales of Equity Securities |
The applicable information set forth in Item 1.01
of this Form 8-K with respect to the issuance of Warrants and Warrant Shares is incorporated herein by reference.
Item 9.01. |
Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: May 15, 2024 |
WISA TECHNOLOGIES, INC. |
|
|
|
|
By: |
/s/ Brett Moyer |
|
|
Name: |
Brett Moyer |
|
|
Title: |
Chief Executive Officer |
Exhibit 1.1
PLACEMENT AGENCY AGREEMENT
May 13, 2024
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, Oregon 97006
Attn: Brett Moyer, Chief Executive Officer
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 up to an aggregate of 785,000 units (each a “Unit” and collectively, the “Units”),
with each 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”)
at the combined purchase price of $3.31 per Unit. The Units and the securities included therein (i.e., the 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 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 (a) the Shares pursuant to the Company’s registration statement on Form S-3, as amended (File
No. 333-267211) (the “Registration Statement”) and (b) the Warrants and Warrants Shares pursuant to an exemption
from the registration requirements of Section 5 of the Securities Act of 1933, as amended (the “Securities
Act”), contained in Section 4(a)(2) thereof and/or regulation D thereunder, 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 Shares and Warrants 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 Shares
and Warrants shall be made at the closing (the “Closing” and the date on which the Closing occurs, the “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 cause the Shares to be electronically delivered to the applicable Purchaser and payment shall be made by the Placement Agent
(or their clearing firm) by wire transfer to the Company, and delivery of the Shares 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. The Warrants
shall be delivered by physical certificates. 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 eight percent (8.0%) of the gross proceeds received by the Company from the sale of
the Shares and Warrants at the Closing; and |
| (ii) | reimbursement of the Placement Agent’s accountable expenses, including the Placement Agent’s
legal counsel’s legal fees, up to $50,000. |
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 Closing Date of the
Offering and (ii) May 30, 2024 (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.
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 the Closing Date, unless such representation, warranty or agreement specifies a different date
or time, as follows:
(a) Securities Law
Filings. The Company has prepared and filed with the U.S. Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (Registration No. 333-267211), and amendments thereto, and related preliminary prospectuses,
for the registration under the Securities Act, of the Shares, which registration statement, as so amended (including post-effective amendments,
if any) became effective on September 13, 2023. At the time of such filing, the Company met the requirements of Form S-3 under
the Securities Act. Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act
and complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and
the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a supplement
to the form of prospectus included in such registration statement relating to the placement of the Shares, and the plan of distribution
thereof and has advised the Placement Agent of all further information (financial and other) with respect to the Company required to be
set forth therein. Such registration statement, including the exhibits thereto, as amended at the date of this Agreement, is hereinafter
called the “Registration Statement”; such prospectus in the form in which it appears in the Registration Statement
is hereinafter called the “Base Prospectus”; and the supplemented form of prospectus, in the form in which it will
be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter called
the “Prospectus Supplement.” Any reference in this Agreement to the Registration Statement, the Base Prospectus or
the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated
Documents”) pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, 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 Base Prospectus or the Prospectus Supplement 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 Base Prospectus or the Prospectus
Supplement, 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 Base Prospectus or the Prospectus Supplement (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 Base Prospectus or the Prospectus Supplement,
as the case may be. No stop order suspending the effectiveness of the Registration Statement or the use of the Base Prospectus or the
Prospectus Supplement has been issued, and no proceeding for any such purpose is pending or has been initiated or, to the Company’s
knowledge, is threatened by the Commission. For purposes of this Agreement, “Free Writing Prospectus” has the meaning
set forth in Rule 405 under the Securities Act.
(b) Assurances.
The Registration Statement (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 Exchange Act and the applicable Rules and Regulations and did not and, as
amended or supplemented, if applicable, will 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 Base Prospectus and the Prospectus Supplement, each
as of its respective date, comply in all material respects with the Securities Act and the Exchange Act and the applicable Rules and
Regulations. Each of the Base Prospectus, and the Prospectus Supplement, 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 the 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,
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
Base Prospectus or Prospectus Supplement), in the light of the circumstances under which they were made not misleading; and any further
documents so filed and incorporated by reference in the Base Prospectus, or Prospectus Supplement, when such documents are filed with
the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations,
as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the 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. There are no documents required to be filed with
the Commission in connection with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities
Act or (y) will not be filed within the requisite time period. There are no contracts or other documents required to be described
in the Base Prospectus, or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which (x) have
not been described or filed as required or (y) will not be filed within the requisite time period.
(c) Offering Materials.
Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to the Closing Date,
any offering material in connection with the offering and sale of the Securities.
(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 Prospectus Supplement, 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) subject
to the Waivers (as defined in the Purchase Agreement), 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 (except as disclosed in the Registration Statement and Prospectus), 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 Prospectus Supplement 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. The 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 the Closing, payment of the purchase price for the Shares and Warrants 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 Shares and Warrants, if any, shall be made at the offices of Placement Agent Counsel. All actions taken at the 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 Prospectus Supplement 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 the Prospectus Supplement 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 the Prospectus Supplement 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 Prospectus Supplement 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 the Prospectus Supplement 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 the Prospectus Supplement. 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 the Prospectus Supplement
(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 the Prospectus Supplement 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 the Prospectus Supplement
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 the Prospectus Supplement that is necessary in order to make
the statements in the Incorporated Documents and the Prospectus Supplement 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 the
Prospectus Supplement, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing
the Incorporated Documents or the Prospectus Supplement 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 Closing Date of the Offering, as many copies of the Prospectus Supplement 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 Closing
Date.
(g) [RESERVED].
(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 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 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 Closing Date. The Company will retain a financial public
relations firm reasonably acceptable to Maxim for a period of two years after the 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. Subject to the Waivers, from the date hereof until thirty (30) days after the Closing Date, without the prior written consent
of the Placement Agent, the Company shall not (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 any amendment or supplement
thereto, other than the Prospectus Supplement or a registration statement on Form S-8 in connection with any employee benefit plan
(the “Lock-Up Period”). Notwithstanding the foregoing, this Section 4(q) shall not apply in respect of an
Exempt Issuance (as defined in the Purchase Agreement), and nothing in this Section 4(q) shall be deemed to prevent the Company
from filing a registration statement in connection with any registration rights obligations in existence prior to the date hereof.
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 and in the Purchase
Agreement, in each case as of the date hereof and as of the 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 Closing Date, 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 Closing Date, as the case may be, in form and substance
satisfactory to the Placement Agent. 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 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
the Prospectus Supplement 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 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 the 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 the 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 the Closing Date a certificate of the Company, dated as of such Closing Date,
signed by the Principal Executive Officer and Principal 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 Prospectus
Supplement, the Transaction Documents and this Agreement and to the further effect that:
(i) 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 Prospectus Supplement 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, the and the Incorporated Documents, if any, when such documents became effective or were filed with the Commission, and the
Prospectus Supplement as of its date and the Closing Date, 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 the Prospectus Supplement,
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 Prospectus Supplement,
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) Secretary’s
Certificate. The Placement Agent shall have received on the Closing Date a certificate of the Company, dated as of the Closing Date,
signed by the Secretary of the Company, dated as of the date of such Closing, certifying to the organizational documents, good standing
in the state of incorporation of the Company and board resolutions relating to the Offering.
(h) Chief Financial
Officer Certificate. On the Closing Date, the Placement Agent shall have received a certificate of Chief Financial Officer addressed
to the Placement Agent and in form and substance satisfactory in all respects to the Placement Agent and Placement Agent’ counsel.
(i) 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 the Prospectus Supplement.
(j) [RESERVED]
(k) [RESERVED]
(l) Warrants.
On the Closing Date, the Company shall deliver or shall cause to be delivered 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.
(m) Additional Documents.
On or before the 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 the 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. 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.
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 the Prospectus Supplement 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, New York 10022
Attention: Clifford A. Teller,
Co-President
Email: cteller@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, Chief
Executive Officer
Email: bmoyer@wisatechnologies.com
With a copy to:
Sullivan & Worcester LLP
1251 Avenue of the Americas
New York, New York 10020
Attention: David E. Danovitch, Esq.
and Aaron M. Schleicher
Email:
ddanovitch@sullivanlaw.com and aschleicher@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, except for (i) that certain placement agency agreement,
dated February 12, 2024, by and between the Company and Maxim Group LLC, (ii) that certain placement agency agreement, dated
March 26, 2024, by and between the Company and Maxim Group LLC, and (iii) that certain waiver agreement, dated as of the date
hereof, by and between the Company and Maxim Group LLC, all of which agreements shall remain in full force and effect. 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. Notwithstanding anything to the contrary contained in this Agreement, the rights set forth in
Section 6(b) and 6(c) of the placement agency agreement, dated February 12, 2024, by and between the Company and Maxim
Group LLC are currently, and shall after execution of this Agreement remain in full force and effect. 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.
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Very truly yours, |
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MAXIM GROUP LLC |
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By: |
/s/ Larry Glassberg |
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Name: Larry Glassberg |
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Title: Co-Head, Investment Banking |
The foregoing Agreement is
hereby confirmed and accepted as of the date first written above.
WiSA Technologies, Inc. |
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By: |
/s/ Brett Moyer |
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Name: Brett Moyer |
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Title: Chief Executive Officer |
|
[Signature Page to Placement Agency Agreement]
Exhibit 4.1
NEITHER THIS SECURITY NOR THE SECURITIES FOR
WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
WISA
TECHNOLOGIES, INC.
Warrant Shares: ______ |
Issuance Date: May 15, 2024 |
THIS COMMON STOCK PURCHASE
WARRANT (the “Warrant”) certifies that, for value received by the Company, _____ or his, her 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 date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on the fifth anniversary
of the Initial Exercise 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).
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.
“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 May 13, 2024, among the Company and certain purchasers signatory thereto, as
amended, modified or supplemented from time to time in accordance with its terms.
“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 the issuance of the Warrant Shares upon the “alternative cashless exercise”
of the Warrants pursuant to Section 2(c) hereof.
“Stockholder Approval
Date” means the date on which Stockholder Approval is received.
“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).
“Transaction Documents”
is defined in the Purchase Agreement.
“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.
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.
b) Exercise Price.
The exercise price per share of Common Stock under this Warrant shall be $3.18, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless Exercise.
If at any time after 120 days following the Initial Exercise Date, 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” commencing on the Stockholder
Approval 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,
(i) 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 by the Holder
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) Stock Dividends and
Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution
or distributions on 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 stock split) outstanding shares
of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of Common Stock any shares of capital
stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number
of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall
be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this
Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment
made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) Reserved.
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 stock, 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 number of shares of capital stock 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 shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant
to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock 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.
f) Reserved.
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 ten (10) trading 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.
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 Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company 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.
d) Transfer Restrictions.
If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not
be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable state securities
or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements
pursuant to Rule 144 promulgated under the Securities Act, the Company may require, as a condition of allowing such transfer, that
the Holder or transferee of this Warrant, as the case may be, to deliver a legal opinion of counsel to the transferor to the effect that
the transfer is pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from, or
is a transaction not subject to, the registration requirements of the Securities Act and is in accordance with applicable state securities
laws.
e) Representation by the
Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof,
will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling
such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to
sales registered or exempted under the Securities Act.
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 stock 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 stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor
and dated as of such cancellation, in lieu of such Warrant or stock 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 Initial Exercise Date 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.
********************
(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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Brett Moyer |
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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).
☐
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the provisions of subsection 2(c),
to exercise this Warrant pursuant to the “alternative 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:
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[SIGNATURE OF HOLDER]
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Signature of Authorized Signatory of Investing Entity: |
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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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Exhibit 5.1
May 15, 2024
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, Oregon 97006
Ladies and Gentlemen:
We have acted as counsel to WiSA Technologies, Inc., a Delaware
corporation (the “Company”), in connection with the offering of 785,000 shares
(the “Shares”) of common stock of the Company, par value $0.0001 per share (“Common Stock”), pursuant to a prospectus
supplement, dated May 13, 2024, and the accompanying base prospectus (together, the “Prospectus”) that form a part of
the Company’s Registration Statement on Form S-3 (File No. 333-267211) (the “Registration Statement”), originally
filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “Securities Act”), on September 1, 2022, and declared effective by the Commission on September 13,
2022, in accordance with the Securities Purchase Agreements (the “Securities Purchase Agreements”) dated as of May 13,
2024, by and among the Company and certain investors party thereto and certain placement agency agreement, dated as of May 13, 2024,
by and between the Company and Maxim Group LLC.
This opinion is being furnished in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Act.
As counsel to the Company in connection with the issuance and sale
of the Shares we have examined: (i) the Company’s certificate of incorporation, as amended, and bylaws, both as currently in
effect; (ii) certain resolutions of the board of directors and a pricing committee thereof relating to the issuance and sale of the
Shares (the “Resolutions”); (iii) the Placement Agency Agreement; (iv) Securities Purchase Agreements; (v) the
Prospectus and the Registration Statement; and (vi) such other proceedings, documents, and records as we have deemed necessary to
enable us to render this opinion. In all such examinations, we have assumed the genuineness of all signatures, the authenticity of all
documents, certificates, and instruments submitted to us as originals, and the conformity with the originals of all documents, certificates,
and instruments submitted to us as copies. We have also assumed the due execution and delivery of all documents where due execution and
delivery are prerequisite to the effectiveness thereof.
Our opinions expressed herein are subject to the following qualifications
and exceptions: (i) the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws relating
to or affecting the rights of creditors generally, including, without limitation, laws relating to fraudulent transfers or conveyances,
preferences, and equitable subordination; (ii) the effect of general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law); and
(iii) we render no opinion as to the effect of the laws of any state or jurisdiction other than the General Corporation Law of the
State of Delaware and the laws of the State of New York.
Based upon and subject to the foregoing, it is our opinion that (i) the
Shares have been duly authorized for issuance, and (ii) when issued and delivered in accordance with the Securities Purchase Agreements
against payment of consideration as contemplated therein the Shares will be validly issued, fully paid and non-assessable.
This opinion is given as of the date hereof and we assume no obligation
to advise you of changes that may thereafter be brought to our attention.
We hereby consent to the reference to our firm under the caption “Legal
Matters” in the Prospectus, which forms a part of the Registration Statement and to the filing of this opinion with the Commission
as an exhibit to a Current Report on Form 8-K filed by the Company with the Commission. In giving this consent, we do not thereby
admit that we are experts within the meaning of Section 11 of the Securities Act or included in the category of persons whose consent
is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
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Very truly yours, |
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/s/ Sullivan & Worcester LLP |
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Sullivan & Worcester LLP |
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of May 13, 2024, between WiSA Technologies, Inc., a Delaware corporation (the
“Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns,
a “Purchaser” and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to (i) an effective registration statement under the
Securities Act (as defined below) for the Shares (as defined below), the Pre-Funded Warrants (as defined below) and the Pre-Funded Warrant
Shares (as defined below), and (ii) an exemption from the registration requirements of Section 5 of the Securities Act contained
in Section 4(a)(2) thereof and/or Regulation D thereunder as to the Warrants (as defined below) and Warrant Shares (as defined
below), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from
the Company, securities of the Company as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings
set forth in this Section 1.1:
“Acquiring Person”
shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“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.
“Applicable Laws”
shall have the meaning ascribed to such term in Section 3.1(n).
“Authorizations”
shall have the meaning ascribed to such term in Section 3.1(n).
“Base Prospectus” means the
prospectus included in the Registration Statement at the time the Registration Statement was declared effective.
“Board of Directors”
means the board of directors of the Company.
“Blank Rome”
means Blank Rome LLP, with offices located at 1271 Avenue of the Americas, New York, New York 10022.
“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
open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date”
means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and
all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the second (2nd) Trading
Day following the date hereof.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Common Unit”
means a fixed combination of one Share and one Warrant to purchase one share of Common Stock.
“Common Unit Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Common Units purchased hereunder as specified below
such Purchaser’s name on the signature page of this Agreement and next to the heading “Common Unit Subscription Amount,”
in United States dollars and in immediately available funds.
“Company Counsel” means Sullivan &
Worcester LLP, with offices located at 1251 Avenue of the Americas, New York, New York 10020.
“Disclosure Time”
means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before
midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date
hereof, unless instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight (New
York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date
hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“Evaluation Date”
shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance”
means the issuance of (a) the Securities issued hereunder; (b) shares of Common Stock or options to employees, officers, directors,
consultants and investor relation agencies of the Company pursuant to the Company’s equity incentive plans or pursuant to the compensation
agreements previously authorized by the Board of Directors provided; however, any such issuances to consultants shall be limited to 100,000
shares; (c) securities upon the exercise or exchange of or conversion of 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, combinations or pre-existing anti-dilution provisions) or to extend
the term of such securities; (d) securities issued pursuant to acquisitions or strategic transactions and the payment of contractor
invoices in the ordinary course of business 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 in Section 4.11(a) herein, and
provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries,
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; and (e) issuances
pursuant to or as contemplated by the Waivers.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Intellectual Property
Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Legend Removal Date”
shall have the meaning ascribed to such term in Section 4.1(d).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse
Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Per Common Unit
Purchase Price” equals $3.31, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement.
“Per Pre-Funded Unit
Purchase Price” equals $3.3099, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement.
“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.
“Placement Agency
Agreement” means that certain placement agency agreement, dated as of May 13, 2024, by and between the Company and the
Placement Agent.
“Placement Agent”
means Maxim Group LLC.
“Pre-Funded Unit”
means a fixed combination of one Pre-Funded Warrant to purchase one Pre-Funded Warrant Share and one Warrant to purchase
one share of Common Stock.
“Pre-Funded Unit
Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for Pre-Funded Units purchased hereunder
as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Pre-Funded
Subscription Amount,” in United States dollars and in immediately available funds.
“Pre-Funded Warrants”
means, collectively, the pre-funded common stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof,
in the form of Exhibit A attached hereto.
“Pre-Funded Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or, to the Company’s knowledge, threatened.
“Prospectus Supplement”
means the final prospectus supplement to the Base Prospectus complying with Rule 424(b) of the Securities Act that is filed
with the Commission and delivered by the Company to each Purchaser at the Closing.
“Purchaser Party” shall have
the meaning ascribed to such term in Section 4.8.
“Registration Statement”
means the effective registration statement on Form S-3 filed with the Commission (File No. 333-267211) which registers the sale
of the Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares to the Purchasers, and includes any Rule 462(b) Registration
Statement.
“Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule 462(b) Registration
Statement” means any registration statement prepared by the Company registering additional Securities, which was filed with
the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated by the
Commission pursuant to the Securities Act, if applicable.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means, collectively, the Shares, the Pre-Funded Warrants, the Pre-Funded Warrant Shares, the Warrants and the Warrant
Shares.
“Securities Act” means the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short Sales”
means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include
locating and/or borrowing shares of Common Stock).
“Stockholders’ Meeting”
shall have the meaning ascribed to such term in Section 4.17.
“Stockholder Approval”
shall have the meaning ascribed to such term in Section 4.17.
“Stockholder Approval
Date” shall have the meaning ascribed to such term in Section 4.17.
“Subscription Amount” means,
as to each Purchaser, the aggregate amount to be paid for the Common Units and Pre-Funded Units purchased hereunder as specified
below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.
“Subsidiary”
means any subsidiary of the Company as set forth in the SEC Reports, 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 principal Trading Market is open for trading.
“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).
“Transaction Documents”
means this Agreement, the Pre-Funded Warrants, the Warrants, and the Placement Agency Agreement, all exhibits and schedules thereto and
hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent”
means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place, Woodmere, New York
11598 and any successor transfer agent of the Company.
“Units”
means, collectively, the Common Units and Pre-Funded Units.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if
the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported 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 Shares then outstanding and reasonably acceptable
to the Company, the fees and expenses of which shall be paid by the Company.
“Waivers”
means certain waiver agreements by and among the Company and the Purchasers, dated as of April 17, 2024.
“Warrants”
means the common stock purchase warrants to purchase shares of Common Stock delivered to the Purchasers at the Closing in accordance with
Section 2.2(a) hereof, in the form of Exhibit B attached hereto.
“Warrant Shares”
means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing. On
the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery
of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase,
up to an aggregate of $2,598,350 of Units. Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed
by such Purchaser shall be made available for “Delivery Versus Payment” (“DVP”) settlement with the Company
or its designee. The Company shall deliver to each Purchaser its respective Shares, Pre-Funded Warrants, if any, and Warrants, and the
Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of
the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of Blank Rome or such other location
as the parties shall mutually agree, which shall include a remote closing by electronic transmission in accordance with the provisions
of this Agreement. Unless otherwise directed by the Placement Agent, settlement of the Shares, the Pre-Funded Warrants and the Warrants
shall occur via DVP (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses
and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt
of such Shares, Pre-Funded Warrants and Warrants, the Placement Agent shall promptly electronically deliver such Shares, Pre-Funded Warrants
and Warrants to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer
to the Company). Notwithstanding anything to the contrary hereunder, to the extent that a Purchaser determines, in its sole discretion,
that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or
any of such Purchaser’s Affiliates) would beneficially own in excess of 4.99% (or, at the election of the Purchaser at the Closing,
9.99%) of the number of shares of Common Stock outstanding immediately prior to giving effect to the issuance of the Common Stock on the
Closing Date (“Beneficial Ownership Maximum”), such Purchaser may elect to receive only the Beneficial Ownership Maximum
at the Closing with the balance of any Shares purchased hereunder, if any, held in abeyance for such Purchaser and issued immediately
following the Closing provided in no event shall such Purchaser’s beneficial ownership ever exceed the Beneficial Ownership Maximum.
The determination pursuant to the provisions of the previous sentence of whether any Purchaser’s beneficial ownership exceeds the
Beneficial Ownership Maximum shall be in the sole discretion of such Purchaser and the Company shall have no obligation to verify or confirm
the accuracy of such determination.
(a) On
or prior to the Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to each Purchaser and the
Placement Agent the following:
|
(i) |
this Agreement duly executed by the Company; |
(ii) a
legal opinion of Company Counsel, in a form reasonably satisfactory to the Purchaser;
(iii) the
Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the Principal
Executive Officer or Principal Financial Officer;
(iv) a
copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository
Trust Company Deposit or Withdrawal at Custodian System (“DWAC”) Shares equal to such Purchaser’s Common Unit
Subscription Amount divided by the Per Common Unit Purchase Price;
(v) if
applicable, a Pre-Funded Warrant to purchase up to a number of Pre-Funded Warrant Shares equal to such Purchaser’s Pre-Funded Unit
Subscription Amount divided by the sum of the Per Pre-Funded Unit Purchase Price plus the exercise price equal to $0.0001, subject to
adjustment therein;
(vi) a
Warrant to purchase up to a number of shares of Common Stock equal to 100% of such Purchaser’s Shares and Pre-Funded Warrant Shares,
as applicable, with an exercise price equal to $3.18 per share, subject to adjustment therein; and
(xii) the
Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b)
On or before the Closing Date, the Placement Agent and Blank Rome shall have received such information, documents and opinions
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.
(c) On or prior to the
Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this
Agreement duly executed by such Purchaser; and
(ii) such
Purchaser’s Subscription Amount, which shall be made available for DVP settlement with the Company or its designee.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as
of a specific date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(c) of this Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) the
Registration Statement shall be effective on the date of this Agreement and at the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending
or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with
to the reasonable satisfaction of the Placement Agent; and
(vi) from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude
in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser,
makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the SEC Reports, which shall qualify any representation or otherwise made herein
to the extent of the disclosure contained therein, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth in the SEC Reports. The Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights
to subscribe for or purchase securities.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise formed, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or formation, with the requisite power and authority to own and
use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation
nor default of any of the provisions of its respective memorandum of association, articles of association, certificate or articles of
incorporation, bylaws, operating agreement or other organizational or charter documents. Each of the Company and the Subsidiaries is duly
qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in
good standing, as the case may be, would not have or reasonably be expected to result in: (i) a material adverse effect on the legality,
validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document
(any of (i), (ii) or (iii), a “Material Adverse Effect”) and, to the Company’s knowledge, no Proceeding
has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents to which the Company is a party and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part
of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection
herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which
the Company is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with
the terms hereof and thereof, will constitute the valid and binding obligations of the Company enforceable against the Company in accordance
with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, liquidation, possessory
liens, rights of set off, merger, consolidation, reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally, (ii) as limited by laws relating to the statutory limitation of the time within which proceedings
may be brought or availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it
is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do
not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s memorandum of association,
articles of association, certificate or articles of incorporation, bylaws, operating agreement or other organizational or charter documents,
or (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 upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights
of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or
both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding
to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected
(other than in respect of anti-dilution, price reset and similar such features contained in securities disclosed in the SEC Reports),
or (iii) subject to the 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 or a Subsidiary is subject (including
federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary 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.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, provincial, local or other governmental authority in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant
to Section 4.4 of this Agreement, (ii) such as have been obtained prior to the date hereof, (iii) such as have been obtained
or made under the Securities Act, (iv) the filing with the Commission of the Prospectus Supplement, (v) applicable approvals
by the Financial Industry Regulatory Authority (“FINRA”), (vi) application(s) to each applicable Trading
Market for the listing of the Shares, Pre-Funded Warrant Shares and Warrant Shares for trading thereon in the time and manner required
thereby, (vii) the filing of a Form D with the Commission, (viii) such filings as are required to be made under applicable
state securities laws, (ix) Stockholder Approval; and (x) such as those that, if not obtained, given or made, would not reasonably
be expected to result in a Material Adverse Effect (collectively, the “Required Approvals”).
(f) Issuance
of the Securities; Registration. The Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Pre-Funded Warrant
Shares, when issued in accordance with the terms of the Pre-Funded Warrants, will be validly issued, fully paid and nonassessable,
free and clear of all Liens imposed by the Company. The Warrant Shares, when issued in accordance with the terms of the Warrants, will
be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Pre-Funded Warrants and Warrants
have been duly authorized by the Company and, when executed and delivered by the Company against payment therefor pursuant to this Agreement,
will be valid and binding agreements of the Company enforceable against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles. The Company has reserved from its duly authorized capital the maximum
number of shares of Common Stock issuable pursuant to this Agreement, the Pre-Funded Warrants and the Warrants. The Company has prepared
and filed the Registration Statement in conformity with the requirements of the Securities Act, which became effective on September 13,
2022 (the “Effective Date”), including the Base Prospectus, and such amendments and supplements thereto as may have
been required to the date of this Agreement. The Registration Statement is effective under the Securities Act and no stop order preventing
or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Base Prospectus or the Prospectus
Supplement has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company,
are threatened by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus
Supplement with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became
effective, and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects
to the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus Supplement
and any amendments or supplements thereto, at the time the Prospectus Supplement, or any amendment or supplement thereto was issued and
at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will
not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. All corporate action required to be taken for authorization,
issuance and sale of the Shares, Pre-Funded Warrants, Pre-Funded Warrant Shares, Warrants and Warrant Shares have been duly and validly
taken. The Securities conform in all material respects to all statements with respect thereto contained in the Registration Statement
and the Prospectus Supplement. The Company was at the time of filing of the Registration Statement eligible to use Form S-3. The
Company is eligible to use Form S-3 under the Securities Act and meets the transaction requirements with respect to the aggregate
market value of securities being sold pursuant to this offering and during the twelve (12) months prior to this offering as set forth
in General Instruction I.B.6 of Form S-3.
(g) Capitalization. The
capitalization of the Company as of the date of the most recently filed Annual Report on Form 10-K of the Company is as set forth
in the SEC Reports. Except as disclosed in the SEC Reports, no Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated by the Transaction Documents. The Securities will not be subject
to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. Except as
disclosed in the SEC Reports and subject to the Waivers, there are no outstanding options, warrants, scrip rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable
for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or
contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional
shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. Except as disclosed in the Registration Statement
and Prospectus Supplement, the issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of
Common Stock or other securities to any Person (other than the Purchasers). Except as set forth in the Registration Statement and Prospectus
Supplement, there are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the
exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary.
Except as set forth in the Registration Statement and Prospectus Supplement, there are no outstanding securities or instruments of the
Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The
Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any
preemptive rights or similar rights to subscribe for or purchase securities. Except for the Required Approvals, no further approval or
authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities. There are
no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the
Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(h) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Registration
Statement, the Base Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”)
on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities
Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Company is not and has never been an issuer subject to Rule 144(i) under
the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing.
Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent
basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the
notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results
of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end
audit adjustments. The agreements and documents described in the Registration Statement, the Prospectus Supplement and the SEC Reports
conform in all material aspects to the descriptions thereof contained therein and there are no agreements or other documents required
by the Securities Act and the rules and regulations thereunder to be described in the Registration Statement, the Prospectus Supplement
or the SEC Reports or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed.
Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound
and is material to the Company’s business (each, a “Material Agreement”), has been duly authorized and validly
executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s
knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification
or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before
which any proceeding therefore may be brought. No Material Agreement has been assigned by the Company, and neither the Company nor, to
the best of the Company’s knowledge, any other party is in default thereunder and, to the best of the Company’s knowledge,
no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder that has had
or that could reasonably be expected to result in a Material Adverse Effect. To the best of the Company’s knowledge, performance
by the Company of the material provisions of the Material Agreements will not result in a violation of any existing applicable law, rule,
regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or
any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations. The other financial
and statistical information included in the SEC Reports present fairly, in all material respects, the information included therein and
have been prepared on a basis consistent with that of the financial statements that are included in the SEC Reports and the books and
records of the respective entities presented therein.
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Except as set forth in the SEC Reports, since the date of the most recent
financial statements of the Company included or incorporated by reference in the Registration Statement and the Prospectus Supplement,
(i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material
Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of business consistent with past practice, (B) liabilities not required to be reflected
in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company
has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the
Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company equity plans disclosed
in the Registration Statement. The Company does not have pending before the Commission any request for confidential treatment of information.
Except for the issuance of the Securities contemplated by this Agreement and except as disclosed in SEC Reports, no event, liability,
fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company
or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required
to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been
publicly disclosed at least one (1) Trading Day prior to the date that this representation is made. Unless otherwise disclosed in
an SEC Report filed prior to the date hereof, the Company has not: (i) issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to
its capital stock.
(j) Litigation.
Except as disclosed in the SEC Reports, there has not been, and to the knowledge of the Company, there is not pending or contemplated,
any action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against
or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative
agency or regulatory authority (federal, state, county, local or foreign)(collectively, an “Action”) that, if there
were an unfavorable decision, would reasonably be expected to result in a Material Adverse Effect. None of the Actions as disclosed in
the SEC Reports (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents
or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been,
and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or
any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(k) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the
Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that
their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and
foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(l) Compliance. Neither
the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that,
with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary
received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other
agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation
has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority
or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product
quality and safety and employment and labor matters, except in each case as would not reasonably be expected to result in a Material Adverse
Effect or as disclosed in the SEC Reports.
(m) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution
or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata),
including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as
all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits,
plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received
all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and
(iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and
(iii), the failure to so comply or receive would reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
(n) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, licenses, authorizations approvals, clearances, consents,
registration and permits issued by the appropriate federal, state, local or foreign regulatory authorities applicable to the Company (“Applicable
Laws”) necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess
such permits would not reasonably be expected to result in a Material Adverse Effect (each, an “Authorization”), and
neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Authorization
or the noncompliance with any ordinance, law, rule or regulation applicable to the Company. The disclosures in the Registration Statement,
if any, concerning the effects of federal, state, local and all foreign regulation on the Company’s business as currently contemplated
are correct in all material respects. The Company is and has been in material compliance with any term of any such Authorizations, except
for any violations which would not reasonably be expected to have a Material Adverse Effect. The Company has not received notice of any
claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental authority or body
or third party alleging that any product, operation or activity is in violation of any Applicable Laws or Authorizations or has any knowledge
that any such entity or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding,
nor, to the Company’s knowledge, has there been any material noncompliance with or violation of any Applicable Laws by the Company
that could reasonably be expected to require the issuance of any such communication or result in an investigation, corrective action,
or enforcement action by any governmental body or entity.
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to, or have valid and marketable rights to
lease or otherwise use, all real property and all personal property owned or used by them that is material to the business of the Company
and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens incurred in connection with purchase money security
interests and equipment financings, (ii) Liens as do not materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and the Subsidiaries, and (iii) Liens for the payment of
federal, provincial, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment
of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance except where
the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(p) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
do so would reasonably be expected to have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
Neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement.
Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC
Reports, a written notice of a claim or otherwise has any knowledge that the operation of their respective businesses violate or infringe
upon the intellectual property rights of any Person, except as would not reasonably be expected to have a Material Adverse Effect. To
the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person
of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where failure to do so would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(q) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited
to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any Subsidiary
has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(r) Transactions
with Affiliates and Employees. Except as disclosed in the SEC Reports, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with
the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing
for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee
or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is
an officer, director, trustee, stockholder, member or partner, in each case in excess of US$120,000 other than for (i) payment of
salary, bonus or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan or equity incentive plans of the Company.
(s) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002, as amended (“SOX”), that are effective as of the date hereof, and any
and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as
of the Closing Date. The Company and each of its Subsidiaries maintain internal control over financial reporting (as such term is defined
in Rule 13a-15(f) under the Exchange Act) that is effective to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with GAAP, including that (i) transactions
are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to maintain asset and liability accountability, (iii) access
to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the
recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate
action is taken with respect to any difference. The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under
the Exchange Act) that are effective in ensuring that information required to be disclosed by the Company in the reports that it files
or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the rules and
forms of the Commission, including, without limitation, controls and procedures designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management,
including its principal executive officer or officers and its principal financial officer or officers, as appropriate, to allow timely
decisions regarding required disclosure. Neither the Company nor any of its Subsidiaries has received any notice or correspondence from
any accountant, Governmental Entity or other Person relating to any potential material weakness in any part of the internal controls over
financial reporting of the Company or any of its Subsidiaries. The Company’s certifying officers have evaluated the effectiveness
of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently
filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most
recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in
the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have
materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its
Subsidiaries.
(t) Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents, other than the compensation payable to the Placement Agent pursuant to the terms of the Placement Agency
Agreement. The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other
Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction
Documents.
(u) Investment
Company. The Company is not, and immediately after receipt of payment for the Units, will not be, required to register as an “investment
company” within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner
so that it will not become an “investment company” subject to registration under the Investment Company Act of 1940, as amended.
(v) Registration
Rights. Except as set forth in the SEC Reports, no Person has any right to cause the Company or any Subsidiary to effect the registration
under the Securities Act of any securities of the Company or any Subsidiary.
(w) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration.
Except as disclosed in the SEC Reports, the Company has not, in the twelve (12) months preceding the date hereof, received notice from
any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with
the listing or maintenance requirements of such Trading Market. The Common Stock is currently eligible for electronic transfer through
The Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to The Depository
Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(x) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of
the Securities and the Purchasers’ ownership of the Securities.
(y) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus Supplement.
The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities
of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries,
their respective businesses and the transactions contemplated hereby, is true and correct and does not contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances
under which they were made, not misleading. There are no documents required to be filed with the Commission in connection with the transaction
contemplated hereby that (a) have not been filed as required pursuant to the Securities Act or (b) will not be filed within
the requisite time period. There are no contracts or other documents required to be described in the Prospectus Supplement, or to be filed
as exhibits or schedules to the Registration Statement, which have not been described or filed as required. The press releases disseminated
by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made and when made, not misleading. The statistical and market-related data included
in the Prospectus Supplement, if any, are based on or derived from sources that the Company reasonably and in good faith believes are
reliable and accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
The Company has obtained all consents required for the inclusion of such statistical and market-related data in the Prospectus Supplement.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained
in the Prospectus Supplement has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith. The
Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(z) No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its controlled Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of
the Securities to be integrated with prior offerings by the Company for purposes of the Securities Act or any applicable shareholder approval
provisions of any Trading Market on which any of the securities of the Company are listed or designated.
(aa) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Units and Pre-Funded Units hereunder, (i) the fair saleable value of the Company’s assets
exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry
on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital
requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof,
and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of
its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its
liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts
as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge
of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one year from the Closing Date. For the avoidance of doubt, such reorganization does not include the Company’s
mergers, acquisitions or other strategic transactions which are not for the primary purpose of avoiding bankruptcy.
(bb) Tax
Status. Except for matters that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, the Company and its Subsidiaries each (i) has made or filed, or secured all extensions for the filing of, all applicable
United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any
jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in
amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably
adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the
Company or of any Subsidiary know of no basis for any such claim.
(cc) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment
to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA. The
Company has taken reasonable steps to ensure that its accounting controls and procedures are sufficient to cause the Company to comply
in all material respects with the FCPA.
(dd) Illegal
or Unauthorized Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor any of the officers, directors,
employees, agents or other representatives of the Company or any of its Subsidiaries or any other business entity or enterprise with which
the Company or any Subsidiary is or has been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution
or gift of money, property, or services, whether or not in contravention of applicable law, (i) as a kickback or bribe to any Person
or (ii) to any political organization, or the holder of or any aspirant to any elective or appointive public office except for personal
political contributions not involving the direct or indirect use of funds of the Company or any of its Subsidiaries.
(ee) Accountants.
The Company’s independent registered public accounting firm is BPM LLP. To the knowledge and belief of the Company, such accounting
firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect
to the financial statements to be included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31,
2024.
(ff) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby.
The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions
contemplated hereby by the Company and its representatives.
(gg) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Section 3.2(f) hereof), it is understood and acknowledged by the Company that: (i) in this Agreement, none of the Purchasers
has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may
engage in hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during
the periods that the value of the Pre-Funded Warrant Shares and the Warrant Shares deliverable with respect to Securities are being determined,
and (z) such hedging activities (if any) could reduce the value of the existing stockholders’ equity interests in the Company
at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities
do not constitute a breach of any of the Transaction Documents.
(hh) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any
action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any
of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the
placement of the Securities.
(ii) D&O
Questionnaires. To the Company’s knowledge, all information contained in the questionnaires most recently completed by each
of the Company’s directors and officers and beneficial owner of 5% or more of the Common Stock or Common Stock Equivalents is true
and correct in all respects and the Company has not become aware of any information which would cause the information disclosed in such
questionnaires become inaccurate and incorrect.
(jj) Cybersecurity.
The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all
material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted,
free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants that would reasonably
be expected to have a Material Adverse Effect on the Company’s business. The Company and its Subsidiaries have implemented and
maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards to maintain
and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems
and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)
used in connection with their businesses There have been no breaches, violations, outages or unauthorized uses of or access to the IT
Systems or Personal Data in use or possession of the Company, and the Company and its Subsidiaries are presently in compliance with all
applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to
the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification, in each case, except
for such breaches, violations, outages, unauthorized uses of or access to, or non-compliance, as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(jj)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon a Purchaser’s
request.
(kk) Compliance
with Data Privacy Laws. The Company and its Subsidiaries are, and at all prior times were, in compliance with all applicable state,
federal, and international data privacy and security laws and regulations (collectively, the “Privacy Laws”), except
where the failure to so comply would not reasonably be expected to result in a Material Adverse Effect. To ensure compliance with the
Privacy Laws, the Company and its Subsidiaries have in place and take appropriate steps reasonably designed to ensure compliance in all
material respects with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure,
handling, and analysis of Personal Data (the “Policies”). The Company and its Subsidiaries have at all times made all
disclosures to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures
made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory
rules or requirements, except for any disclosures, inaccuracies or violations that would not reasonably be expected to result in
a Material Adverse Effect. The Company further certifies that neither it nor any Subsidiary: (i) has received notice of any actual
or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any
event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in
whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to
any order, decree, or agreement that imposes any obligation or liability under any Privacy Law, in each case except as would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(ll) Stock
Option Plans or Equity Incentive Plans. Each stock option granted by the Company under the Company’s stock option plan or equity
incentive plan was granted (i) in accordance with the terms of the Company’s stock option plan or equity incentive plan and
(ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such stock option would be considered
granted under GAAP and applicable law. No stock option granted under the Company’s stock option plan or equity incentive plan has
been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant,
stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of
material information regarding the Company or its Subsidiaries or their financial results or prospects.
(mm) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
employee or controlled Affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(nn) Shell
Company Status. The Company is not, and during the past three (3) years was not, a shell company defined in Rule 405.
(oo) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial record-keeping and reporting requirements of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada),
and the U.S. Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder, and any related or similar rules, regulations or guidelines issued, administered
or enforced by any governmental agency (collectively, the “Money Laundering Laws”), and no Action or Proceeding by
or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect to
the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(pp) FINRA
Affiliation. No officer, director or any beneficial owner of 5% or more of the Company’s Common Stock or Common Stock Equivalents
has any direct or indirect affiliation or association with any member of FINRA (as determined in accordance with the rules and regulations
of FINRA) that is participating in the Offering. Except for securities purchased on the open market, no Company Affiliate is an owner
of stock or other securities of any member of FINRA. No Company Affiliate has made a subordinated loan to any member of FINRA. No proceeds
from the sale of the Securities (excluding compensation as disclosed in the Prospectus Supplement to the Placement Agent) will be paid
to any FINRA member, any persons associated with a FINRA member or an affiliate of a FINRA member. Except as disclosed in the Registration
Statement and Prospectus, no person to whom securities of the Company have been privately issued within the 180-day period prior to the
initial filing date of the Prospectus Supplement is a FINRA member, is a person associated with a FINRA member or is an affiliate of a
FINRA member. No FINRA member participating in the offering has a conflict of interest with the Company. For this purpose, a “conflict
of interest” exists when a FINRA member, the parent or affiliate of a FINRA member or any person associated with a FINRA member
in the aggregate beneficially own 5% or more of the Company’s outstanding subordinated debt or common equity, or 5% or more of the
Company’s preferred equity. “FINRA member participating in the offering” includes any associated person of a FINRA member
that is participating in the offering, any member of such associated person’s immediate family and any affiliate of a FINRA member
that is participating in the offering. “Any person associated with a FINRA member” means (1) a natural person who is
registered or has applied for registration under the rules of FINRA and (2) a sole proprietor, partner, officer, director, or
branch manager of a FINRA member, or other natural person occupying a similar status or performing similar functions, or a natural person
engaged in the investment banking or securities business who is directly or indirectly controlling or controlled by a FINRA member. When
used in this Section 3.1(pp) the term “affiliate of a FINRA member” or “affiliated with a FINRA member” means
an entity that controls, is controlled by or is under common control with a FINRA member. The Company will advise the Placement Agent
and Blank Rome if it learns that any officer, director or owner of 5% or more of the Company’s outstanding Common Stock or Common
Stock Equivalents is or becomes an affiliate or associated person of a FINRA member firm.
(qq) [Reserved].
(rr) Board
of Directors. The qualifications of the persons serving as board members and the overall composition of the Board of Directors comply
with SOX and the rules promulgated thereunder applicable to the Company and the rules of the Trading Market. At least one member
of the Board of Directors qualifies as a “financial expert” as such term is defined under SOX and the rules promulgated
thereunder and the rules of the Trading Market. In addition, at least a majority of the persons serving on the Board of Directors
qualify as “independent” as defined under the rules of the Trading Market.
(ss) Employee
Plans. The SEC Reports disclose, to the extent required by applicable securities laws, each plan for retirement, bonus, stock purchase,
profit sharing, stock option, deferred compensation, severance or termination pay, insurance, medical, hospital, dental, vision care,
drug, sick leave, disability, salary continuation, legal benefits, unemployment benefits, vacation, incentive or otherwise contributed
to, or required to be contributed to, by the Company for the benefit of any current or former director, officer, employee or consultant
of the Company (the “Employee Plans”), each of which has been maintained in all material respects with its terms and
with the requirements prescribed by any and all statutes, orders, rules and regulations that are applicable to such Employee Plans.
(tt) Other
Covered Persons. The Company is not aware of any person that has been or will be paid (directly or indirectly) renumeration for solicitation
of purchasers in connection with the sale of any Securities other than the Placement Agent.
(uu) Private
Placement. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer and sale of the Warrants and Warrant Shares.
(vv) [Reserved].
(ww) No
General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Warrants
or Warrant Shares by any form of general solicitation or general advertising. The Company has offered the Warrants and Warrant Shares
for sale only to the Purchasers and certain other “accredited investors” within the meaning of Rule 501 under the Securities
Act.
(xx) No
Disqualification Events. With respect to the Warrants and Warrant Shares to be offered and sold hereunder in reliance on Rule 506
under the Securities Act, none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other
officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding
voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the
Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”) is
subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities
Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3).
The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company
has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Purchasers a
copy of any disclosures provided thereunder.
(yy) Notice
of Disqualification Events. The Company will notify the Purchasers in writing, prior to the Closing Date of (i) any Disqualification
Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, reasonably be expected to become
a Disqualification Event relating to any Issuer Covered Person, in each case of which it is aware.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents to which such Purchaser
is a party and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by
all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each
Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance
with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it 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.
(b) Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to a registration statement or otherwise in compliance with
applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act and/or meets the
definition of “qualified institutional buyer” as defined in Rule 144A(a)(1) under the Securities Act and, and is
not an entity formed for the sole purpose of acquiring the Securities (it being understood that the issuance of the Securities is being
made in reliance on Section 4(2) or Regulation D, and not Rule 144A), in either case which such knowledge and experience
in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Securities.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(e) Access
to Information. Such Purchaser acknowledges that it has reviewed the Transaction Documents (including all exhibits and schedules thereto)
and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and
risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain
such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment. For example, each Purchaser understands that the Company faces certain
challenges, including that: (i) the market price for the Common Stock is particularly volatile given the Company’s status
as a relatively unknown company with a small and thinly traded public float, and lack of profits, which could lead to wide fluctuations
in the share price of the Common Stock; (ii) the Company has been notified by the Staff at The Nasdaq Stock Market LLC (“Nasdaq”)
of its failure to comply with certain continued listing requirements and the Staff’s determination to grant the Company’s
request for continued listing of its securities, subject to the Company demonstrating compliance with certain Nasdaq Listing Rules including
the achievement of certain interim milestones; and (iii) it has recurring losses from operations, a net capital deficiency and a
need for additional capital; however, there can be no assurance that the Company will achieve the interim milestones, regain and maintain
compliance with the Nasdaq continued listing requirements and that its securities will continue to be listed on Nasdaq. Such Purchaser
acknowledges and agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any
information or advice with respect to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent
nor any Affiliate has made or makes any representation as to the Company or the quality of the Securities and the Placement Agent and
any Affiliate may have acquired non-public information with respect to the Company which such Purchaser agrees need not be provided to
it. In connection with the issuance of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted
as a financial advisor or fiduciary to such Purchaser.
(f) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received
a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material pricing terms
of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by
the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons
party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners,
legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made
to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for
the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect
to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
(g) General
Solicitation. Such Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any
seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.
(h) No
Governmental Review. Such Purchaser understands that no United States agency or any other government or governmental agency has passed
on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Securities nor
have such authorities passed upon or endorsed the merits of the offering of the Securities.
(i) No
Intention to Effect a Change of Control. Such Purchaser has no present intent to effect a “change of control” of the
Company as such term is understood under the rules promulgated pursuant to Section 13(d) of the 1934 Act and under the
rules of Nasdaq. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser’s assets, the representation set forth above shall only apply with
respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered
by this Agreement.
(j) No
Rule 506 Disqualifying Activities. If such Purchaser is an Issuer Covered Person, such Purchaser has not taken any of the actions
set forth in, and is not subject to, any Disqualification Events.
The Company acknowledges and
agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order to
effect Short Sales or similar transactions in the future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Legends.
(a) The
Shares and the Pre-Funded Warrants shall be issued free of legends.
(b) The
Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer
of Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate
of a Purchaser or in connection with a pledge as contemplated in Section 4.1(c), the Company may require the transferor thereof to
provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance
of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such
transferred Warrant or Warrant Shares under the Securities Act.
(c) The
Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Warrants or Warrant Shares
in the following form:
NEITHER THIS SECURITY NOR THE SECURITIES
INTO WHICH THIS SECURITY IS EXERCISABLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF
ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The Company acknowledges
and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant
a security interest in some or all of the Warrants or Warrant Shares to a financial institution that is an “accredited investor”
as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may
transfer pledged or secured Warrants or Warrant Shares to the pledgees or secured parties. Such a pledge or transfer would not be subject
to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection
therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute
and deliver such reasonable documentation as a pledgee or secured party of Warrants and Warrant Shares may reasonably request in connection
with a pledge or transfer of the Warrants or Warrant Shares.
(d) Certificates
evidencing the Warrant Shares shall not contain any legend (including the legend set forth in Section 4.1(c) hereof): (i) while
a registration statement covering the resale of such security is effective under the Securities Act, or (ii) following any sale of
such Warrant Shares pursuant to Rule 144 without volume or manner of sale limitations (assuming cashless exercise of the Warrants),
or (iii) if such Warrant Shares are eligible for sale under Rule 144 (assuming cashless exercise of the Warrants), or (iv) if
such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements
issued by the staff of the Commission). The Company shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser
promptly if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively.
If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the
Warrant Shares, or if such Warrant Shares may be sold under Rule 144 without volume or manner of sale limitations (assuming cashless
exercise of the Warrants) or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the staff of the Commission) then such Warrant Shares shall be issued free of all legends.
The Company agrees that following such time as such legend is no longer required under this Section 4.1(d), the Company will, no
later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement
Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Warrant
Shares, as applicable, issued with a restrictive legend (such date, the “Legend Removal Date”), deliver or cause to
be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other legends. The Company
may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth
in this Section 4. Warrant Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser
by crediting the account of the Purchaser’s prime broker with The Depository Trust Company System as directed by such Purchaser.
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 a certificate
representing Warrant Shares issued with a restrictive legend.
(e) In
addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, either (i) as partial
liquidated damages and not as a penalty, for each $1,000 of Warrant Shares (based on the VWAP of the Common Stock on the date such Securities
are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading
Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after
the Legend Removal Date until such certificate is delivered without a legend and (ii) if the Company fails to (a) issue and
deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to
the Company by such Purchaser that is free from all restrictive and other legends or (b) if after the Legend Removal Date such Purchaser
purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of
all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion
of the number of shares of Common Stock, that such Purchaser anticipated receiving from the Company without any restrictive legend, then
an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of-pocket
expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any)
(the “Buy-In Price”) over the product of (A) such number of Warrant Shares that the Company was required to deliver
to such Purchaser by the Legend Removal Date multiplied by (B) the lowest closing sale price of the Common Stock on any Trading Day
during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Warrant Shares (as the case
may be) and ending on the date of such delivery and payment under this Section 4.1(d).
4.2 Furnishing
of Information.
(a) Until
the earlier of the time that (i) no Purchaser owns any Securities, or (ii) the Pre-Funded Warrants and Warrants have expired,
the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the
reporting requirements of the Exchange Act.
(b) At
any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of the
Warrant Shares (assuming cashless exercise) may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and
otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the
current public information requirement under Rule 144(c) or (ii) becomes an issuer described in Rule 144(i)(1)(i) in
the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information
Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash,
as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Warrant Shares,
an amount in cash equal to two percent (2.0%) of the aggregate exercise price of such Purchaser’s Warrants on the day of a Public
Information Failure and on every thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter
until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public information is
no longer required for the Purchasers to transfer the Warrant Shares pursuant to Rule 144. The payments to which a Purchaser
shall be entitled pursuant to this Section 4.2(b) are referred to herein as “Public Information Failure Payments.”
Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public
Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise
to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments
in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months)
until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure,
and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief.
4.3 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2
of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations
of any Trading Market such that it would require stockholder approval prior to the closing of such other transaction unless stockholder
approval is obtained before the closing of such subsequent transaction.
4.4 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms
of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits
thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company
represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers
by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, controlled Affiliates or agents,
including, without limitation, the Placement Agent, in connection with the transactions contemplated by the Transaction Documents. In
addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar
obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers,
directors, agents, employees, controlled Affiliates or agents, including, without limitation, the Placement Agent, on the one hand, and
any of the Purchasers or any of their Affiliates on the other hand, shall terminate and be of no further force or effect. The Company
understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the
Company. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions
contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement
without the prior consent of (i) the Placement Agent, with respect to any press release of the Company and (ii) the Company,
with respect to any press release of any Purchaser, which consent shall not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the
Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall
provide the Purchasers with prior notice of such disclosure permitted under this clause (b) and reasonably cooperate with such Purchaser
regarding such disclosure.
4.5 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser
is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.6 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting on
its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto such Purchaser shall have consented in writing to the receipt of such
information and agreed in writing with the Company to keep such information confidential. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company,
any of its Subsidiaries, or any of their respective officers, directors, agents, employees or controlled Affiliates delivers any material,
non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser
shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees,
controlled Affiliates or agents, including, without limitation, the Placement Agent, or a duty to the Company, any of its Subsidiaries
or any of their respective officers, directors, employees, Affiliates or agents, including, without limitation, the Placement Agent, not
to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To
the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding
the Company or any Subsidiaries, the Company shall simultaneously with the delivery of such notice file such notice with the Commission
pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing
covenant in effecting transactions in securities of the Company.
4.7 Use
of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder as set forth in the Prospectus
Supplement and shall not use such proceeds in violation of FCPA or OFAC regulations.
4.8 Indemnification
of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify (to the fullest extent permitted
by applicable law) and hold each Purchaser and its directors, officers, shareholders, members, managers, partners, employees and agents
(and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any
other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling
persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies,
damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the
representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any
action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of
the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents
(unless such action is solely based upon a material breach of such Purchaser Party’s representations, warranties or covenants under
the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations
by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which is finally judicially determined
to constitute fraud, gross negligence or willful misconduct) or (c) in connection with any registration statement of the Company
providing for the resale by the Purchasers of the Warrant Shares issued and issuable upon the exercise of the Warrants. The Company will
indemnify each Purchaser Party, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses, as incurred, arising out of or relating
to (i) any untrue or alleged untrue statement of a material fact contained in such registration statement, any prospectus or any
form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus
or supplement thereto, in the light of the circumstances under which they were made) not misleading, except to the extent, but only to
the extent, that such untrue statements or omissions are based solely upon information regarding such Purchaser Party furnished in writing
to the Company by such Purchaser Party expressly for use therein, or (ii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder in connection therewith. If any
action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser
Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of
its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party 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 Purchaser
Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the
Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is,
in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of
such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate
counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected
without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but
only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations,
warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification
required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense,
as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action
or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.9 Reservation
of Common Stock; Authorized Shares. As of the date hereof, the Company has reserved and the Company shall continue to reserve and
keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the
Company to issue Shares pursuant to this Agreement, Pre-Funded Warrant Shares pursuant to any exercise of the Pre-Funded Warrants,
and Warrant Shares pursuant to any exercise of the Warrants.
4.10 Listing
of Common Stock. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common Stock on the
Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall have applied to list or quote all
of the Shares, the Pre-Funded Warrant Shares and the Warrant Shares on such Trading Market and promptly secure the listing of
all of the Shares, the Pre-Funded Warrant Shares and the Warrant Shares on such Trading Market. The Company further agrees,
if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all of the
Shares, the Pre-Funded Warrant Shares and the Warrant Shares, and will take such other action as is necessary to cause all of
the Shares, the Pre-Funded Warrant Shares and the Warrant Shares to be listed or quoted on such other Trading Market as promptly
as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading
Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of
the Trading Market. The Company agrees to take all reasonable action to maintain the eligibility of the Common Stock for electronic transfer
through The Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of
fees to The Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
4.11
Subsequent Equity Sales.
(a) Except
as set forth in the Waivers, from the date hereof until thirty (30) 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 any amendment or supplement with respect thereto, other than
(A) the Prospectus Supplement, (B) the filing a registration statement on Form S-8 in connection with any employee benefit
plan. For the avoidance of doubt, nothing in this Section 4.11 shall be deemed to prevent the Company from filing a registration
statement in connection with any registration rights obligations in existence prior to the date hereof.
(b) Except
as set forth in the Waivers, from the date hereof until the six-month anniversary of the Closing Date, the Company shall be prohibited
from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common
Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction”
means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable
or exercisable for, or include the right to receive additional shares of Common Stock either (A) at a conversion price, exercise
price or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common
Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price
that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of
specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters
into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit, whereby the Company may
issue securities at a future determined price regardless of whether shares pursuant to such agreement have actually been issued and regardless
of whether such agreement is subsequently canceled. Any Purchaser shall be entitled to obtain injunctive relief against the Company to
preclude any such issuance, which remedy shall be in addition to any right to collect damages. For purposes of this Section 4.11(b),
an “at the market offering” and an “equity line of credit” shall not constitute a Variable Rate Transaction.
(c) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of (i) an Exempt Issuance, except that no Variable Rate Transaction
shall be an Exempt Issuance and (ii) any financing deemed necessary by the Company in order to satisfy the continued listing requirements
of Nasdaq.
4.12 Equal
Treatment of Purchasers. No consideration (including any modification of this Agreement) shall be offered or paid to any Person to
amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration is also offered to all of
the parties to this Agreement. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the
Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not
in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities
or otherwise.
4.13 Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor
any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales
of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that
the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4.
Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by
this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser
will maintain the confidentiality of the existence and terms of this transaction (other than as disclosed to its legal and other representatives).
Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges
and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions
in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant
to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting
any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and
(iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company, any
of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates, or agent, including, without limitation, the
Placement Agent, after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Securities covered by this Agreement.
4.14 Exercise
Procedures. The form of Notice of Exercise included in the Pre-Funded Warrants and the Warrants, respectively, set forth the totality
of the procedures required of the Purchasers in order to exercise the Pre-Funded Warrants and the Warrants, respectively. No additional
legal opinion, other information or instructions shall be required of the Purchasers to exercise their Pre-Funded Warrants and/or Warrants.
Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or
other type of guarantee or notarization) of any Notice of Exercise form be required by the Company in order to exercise the Pre-Funded
Warrants or Warrants. The Company shall honor exercises of the Pre-Funded Warrants and Warrants and shall deliver Pre-Funded Warrant Shares
and the Warrant Shares, as the case may be, in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.15 Registration
Statement. As soon as practicable (and in any event by May 30, 2024), the Company shall file a registration statement on
Form S-1 (or other appropriate form) providing for the resale by the Purchasers of the Warrant Shares issued and issuable upon exercise
of the Warrants. The Company shall use commercially reasonable efforts to cause such registration statement to become effective as soon
as practicable (and in any event within 90 calendar days following the Closing Date) and keep such registration statement effective at
all times until no Purchaser owns any Warrants or Warrant Shares issuable upon exercise thereof.
4.16 Form D;
Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Warrants and Warrant Shares as required under
Regulation D and to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action as the Company
shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Warrant and Warrant Shares for, sale to
the Purchasers at the Closing under applicable securities or “Blue Sky” laws of the states of the United States, and shall
provide evidence of such actions promptly upon request of any Purchaser.
4.17 Stockholders’
Meeting. The Company covenants that, promptly following the Closing Date, the Company shall take all corporate action necessary to
call a meeting of its stockholders (the “Stockholders’ Meeting”), which shall occur not later than September 30,
2024, for the purpose of seeking approval of the Company’s stockholders (“Stockholder Approval”) with respect
to the issuance of the Warrant Shares issuable upon the “alternative cash exercise” of the Warrants pursuant to Section 2(c) thereof.
In connection therewith, the Company will file with the Commission proxy materials (including a proxy statement and form of proxy) for
use at the Stockholders’ Meeting and, after receiving and promptly responding to any comments of the Commission thereon, shall as
soon as reasonably practicable mail such proxy materials to the stockholders of the Company. The Company will comply with Section 14(a) of
the Exchange Act and the rules promulgated thereunder in relation to any proxy statement (as amended or supplemented, the “Proxy
Statement”) and any form of proxy to be sent to the stockholders of the Company in connection with the Stockholders’ Meeting,
and the Proxy Statement shall not, on the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed
to stockholders or at the time of the Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary
to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders’ Meeting which
has become false or misleading. If the Company should discover at any time prior to the Stockholders’ Meeting, any event relating
to the Company or the Subsidiary or any of their respective affiliates, officers or directors that is required to be set forth in a supplement
or amendment to the Proxy Statement, in addition to the Company’s obligations under the Exchange Act, the Company will promptly
inform the Placement Agent. The Board shall recommend to the Company’s stockholders that the stockholders vote in favor of the proposals
for Stockholder Approval at the Stockholders’ Meeting and take all commercially reasonable action (including, without limitation,
the hiring of a proxy solicitation firm of nationally recognized standing) to solicit the Stockholder Approval. If the Company does not
obtain Stockholder Approval at the Stockholders’ Meeting, the Company shall call a meeting every three (3) months thereafter
to seek shareholder approval until the date that stockholder approval is obtained (the “Stockholder Approval Date”).
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated
on or before the fifth (5th) Trading Day following the date hereof; provided, however, that no such termination
will affect the right of any party to sue for any breach by any other party (or parties).
5.2 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered
by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto and the Prospectus Supplement, contain the
entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via
email attachment at the email address as 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 time of transmission, if such notice or communication is delivered
via email attachment at the email 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. The address for such notices and communications shall be as set forth on the signature pages attached hereto. To the
extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding
the Company or any of its Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K.
5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the sum of (i) the Shares and
(ii) the Pre-Funded Warrant Shares initially issuable upon exercise of the Pre-Funded Warrants, if any, based on the initial Subscription
Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) (unless any Purchaser has disposed of all their Securities,
in which case that Purchaser’s interest shall not count in such calculation), or, in the case of a waiver, by the party against
whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and
adversely impacts a Purchaser (or group of Purchasers), the consent of the disproportionately impacted Purchaser (in the case of a single
disproportionately impacted Purchaser) or at least 50.1% in interest of such disproportionately impacted Purchasers (in the case of a
group of disproportionately impacted Purchasers) shall also be required. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely
affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require
the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall
be binding upon each Purchaser and holder of Securities and the Company.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other
than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or
transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by
the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8 Third-Party
Beneficiary. The Placement Agent shall be the third party beneficiary of the representations and warranties of the Company in Section 3.1
and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except as otherwise set forth in Section 4.8, this Section 5.8 and the Placement
Agency Agreement, as applicable.
5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents 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. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, 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 (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such 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 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
Agreement 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 any party shall commence an Action
or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under Section 4.8,
the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail
delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were
an original thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of
the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and
the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw,
in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights; provided, however, that, in the case of a rescission of an
exercise of a Pre-Funded Warrant or Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to
any such rescinded exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company
for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Pre-Funded
Warrant or Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
5.14 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
5.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required
to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
5.17 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and
not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained
in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers. Notwithstanding anything to the contrary in the foregoing,
each of the Purchasers has been advised, and is being advised by this Agreement, to consult with an attorney before executing this Agreement,
and each Purchaser has consulted (or had an opportunity to consult) with counsel of such Purchaser’s choice concerning the terms
and conditions of this Agreement and the other Transaction Documents for a reasonable period of time prior to the execution hereof and
thereof.
5.18 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been
paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due
and payable shall have been canceled.
5.19 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 Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
5.20 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference
to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.21 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES
EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.
WISA TECHNOLOGIES, INC. |
|
Address for Notice: |
|
|
|
15268 NW Greenbrier Pkwy |
|
|
|
Beaverton, Oregon 97006 |
By: |
|
|
Attn: Brett Moyer |
Name: |
Brett Moyer |
|
E-Mail: bmoyer@wisatechnologies.com |
Title: |
Chief Executive Officer |
|
|
With copies to (which shall not constitute notice):
Sullivan & Worcester LLP
1251 Avenue of the Americas
New York, NY 10020
Attention: David E. Danovitch, Esq. and Aaron M. Schleicher, Esq.
Facsimile: (212) 660-3001
E-mail: ddanovitch@sullivanlaw.com; aschleicher@sullivanlaw.com
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
[PURCHASER SIGNATURE PAGES TO WISA TECHNOLOGIES, INC.
SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Purchaser: ____________________________________________________________________________________
Signature of Authorized Signatory of Purchaser:
_____________________________________________
Name of Authorized Signatory: __________________________________________________________
Title of Authorized Signatory: ___________________________________________________________
Email Address of Authorized Signatory:
___________________________________________________
Address for Notice to Purchaser:
___________________________________________________
Address for Delivery of Securities to Purchaser
(if not same as address for notice):
Common Unit Subscription Amount: $_________________
Common Units: _________________
Pre-Funded Unit Subscription Amount: $__________________
Pre-Funded Units:____________________
Pre-Funded
Warrant Shares: ____________ Beneficial Ownership Blocker o 4.99% or o
9.99%
Warrant
Shares: ________________ Beneficial Ownership Blocker o 4.99% or o
9.99%
EIN Number: ____________________
o Notwithstanding
anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to purchase the
securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the Company to sell
such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii) the Closing
shall occur on the second (2nd) Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated
by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed
of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead
be an unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate
or the like or purchase price (as applicable) to such other party on the Closing Date.
Exhibit A
Form of Pre-Funded Warrant
(Reserved)
Exhibit B
Form of Warrant
(attached)
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Grafico Azioni WiSA Technologies (NASDAQ:WISA)
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