As filed with the Securities and Exchange
Commission on February 5, 2024
Registration No. 333-276631
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 1
to
FORM S-1
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
WISA TECHNOLOGIES, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
|
3674 |
|
30-1135279 |
(State or other jurisdiction of
incorporation or organization) |
|
(Primary Standard Industrial
Classification Code Number) |
|
(IRS Employer
Identification No.) |
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, OR 97006
(408) 627-4716
(Address, including zip code and telephone
number, including area code, of registrant’s principal executive
offices)
Brett Moyer
Chief Executive Officer
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, OR 97006
(408) 627-4716
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
David E.
Danovitch, Esq.
Aaron M. Schleicher, Esq.
Sullivan & Worcester LLP
1633 Broadway
New York, NY 10019
(212) 660-3060 |
Leslie Marlow, Esq.
Patrick J. Egan, Esq.
Hank Gracin, Esq.
Blank Rome LLP
1271 Avenue of the Americas
New York, New York 10020
(212) 885-5000 |
Approximate
date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration
statement.
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, check the following box: x
If this Form is
filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is
a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is
a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer: ¨ |
Accelerated filer: ¨ |
Non-accelerated filer: x |
Smaller reporting company: x |
|
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 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission
acting pursuant to said Section 8(a), may determine.
The information in this prospectus
is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS |
|
SUBJECT TO COMPLETION |
|
DATED FEBRUARY 5, 2024 |
Up to 100,000,000 Units
(Each Unit Consisting of One Share of Common Stock and
One Warrant Exercisable for One Share of Common Stock)
Up to 100,000,000 Pre-Funded Units
(Each Pre-Funded Unit Consisting of One Pre-Funded Warrant Exercisable for One Share of Common Stock and One Warrant Exercisable for
One Share of Common Stock)
100,000,000 Shares of Common Stock Underlying
the Warrants
100,000,000 Shares of Common Stock Underlying
the Pre-Funded Warrants
WiSA Technologies, Inc.
We are offering on a reasonable best-efforts
basis up to 100,000,000 units (“Units”), each consisting of one share of our common stock, par value $0.0001 per share (“Common
Stock”) and one warrant to purchase one share of our Common Stock (each, a “Warrant”), at an assumed offering price
of $0.10 per Unit, which is equal to the closing price of our Common Stock on the Nasdaq Capital Market (“Nasdaq”) on January
29, 2024. The Units have no stand-alone rights and will not be certificated or issued as stand-alone securities. The Common Stock and
Warrants included in the Units are immediately separable and will be issued separately in this offering.
The
Warrants offered hereby will initially have an exercise price equal to 100% of the public offering price of each Unit sold in this offering,
and shall not be exercisable until after the date that stockholder approval is obtained to approve each of (i) the issuance of the shares
of Common Stock issuable upon the exercise of the Warrants (the “Warrant Shares”), as may be required by the applicable rules
and regulations of The Nasdaq Stock Market LLC and (ii) if necessary, a proposal to amend the Company’s certificate of incorporation,
as amended (the “Certificate of Incorporation”), to increase the authorized share capital of the Company to an amount sufficient
to cover the Warrant Shares or to effectuate a reverse stock split whereby the authorized share capital is not split and is sufficient
to cover the Warrant Shares (and such reverse split is effectuated (“Stockholder Approval”), and will expire on the fifth
(5th) anniversary of the date on which Stockholder Approval is received and deemed effective under Delaware law. The
exercise price of each Warrant will be reset on the sixth (6th) trading day following the date of the Company’s next reverse stock
split of shares of Common Stock to the lower of (a) the exercise price of the Warrant then in effect after giving effect to such reverse
stock split and (b) the lowest VWAP (as defined in the Warrants) of the Common Stock in the five (5) trading days immediately prior to
such date.
We are also offering to those purchasers, if any,
whose purchase of Units in this offering would otherwise result in the purchaser, together with its affiliates and related parties, beneficially
owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding Common Stock immediately following the consummation
of this offering, the opportunity to purchase, if they so choose, pre-funded units (“Pre-Funded Units”) in lieu of the Units
that would otherwise result in ownership in excess of 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding Common Stock,
with each Pre-Funded Unit consisting of one pre-funded warrant to purchase one share of our Common Stock (each, a “Pre-Funded Warrant”),
and one Warrant. The purchase price of each Pre-Funded Unit will equal the price per Unit, minus $0.0001, and the exercise price of each
Pre-Funded Warrant included in the Pre-Funded Unit will be $0.0001 per share of our Common Stock. The Pre-Funded Units have no stand-alone
rights and will not be certificated or issued as stand-alone securities. The Pre-Funded Warrants and Warrants included in the Pre-Funded
Units are immediately separable and will be issued separately in this offering. There can be no assurance that we will sell any of the
Pre-Funded Units being offered. The Pre-Funded Warrants offered hereby will be immediately exercisable and may be exercised at any time
until exercised in full. For each Pre-Funded Unit we sell, the number of Units we are offering will be decreased on a one-for-one basis.
Because we will issue one Warrant as part of each Unit or Pre-Funded Unit, the number of Warrants sold in this offering will not change
as a result of a change in the mix of the Units and Pre-Funded Units sold.
We are also registering the Common Stock issuable
from time to time upon exercise of the Warrants and Pre-Funded Warrants included in the Units and Pre-Funded Units offered hereby. See
“Description of the Securities We Are Offering” in this prospectus for more information. We refer to the shares of
our Common Stock, the Warrants, the Pre-Funded Warrants, and the shares of our Common Stock issued or issuable upon exercise of the Warrants
and Pre-Funded Warrants, collectively, as the securities.
Our shares of Common Stock are listed on Nasdaq
under the symbol “WISA.” On February 2, 2024, the last reported sale price of our shares of Common Stock on Nasdaq was $0.086
per share.
There is no established public trading market for the Units, Pre-Funded
Units, Warrants or Pre-Funded Warrants, and we do not expect a market to develop. Without an active trading market, the liquidity of
such securities will be limited. In addition, we do not intend to list the Warrants or Pre-Funded Warrants on Nasdaq, any other national
securities exchange or any other trading system.
The securities will be offered at a fixed price
and are expected to be issued in a single closing. Investors purchasing securities offered hereby will have the option to execute a securities
purchase agreement with us. When we price the securities, we will simultaneously enter into securities purchase agreements relating to
the offering with those investors who so choose. We expect this offering to be completed not later than two (2) business days following
the commencement of this offering and we will deliver all securities to be issued in connection with this offering delivery versus payment/receipt
versus payment upon receipt of investor funds received by us. Accordingly, neither we nor the placement agent have made any arrangements
to place investor funds in an escrow account or trust account since the placement agent will not receive investor funds in connection
with the sale of the securities offered hereunder.
We have engaged Maxim Group LLC as our exclusive
placement agent (“Maxim” or the “placement agent”) to use its reasonable best efforts to solicit offers to purchase
our securities in this offering. The placement agent has no obligation to purchase any of the securities from us or to arrange for the
purchase or sale of any specific number or dollar amount of the securities. Because there is no minimum offering amount required as a
condition to closing in this offering, the actual public offering amount, placement agent’s fee, and proceeds to us, if any, are
not presently determinable and may be substantially less than the total maximum offering amounts set forth above and throughout this
prospectus. We have agreed to pay the placement agent the placement agent fees set forth in the table below. See “Plan of Distribution”
in this prospectus for more information.
|
|
Per
Unit |
|
Per
Pre-Funded Unit |
|
Total |
|
Public offering price |
|
$ |
|
$ |
|
$ |
|
Placement agent fees(1) |
|
$ |
|
$ |
|
$ |
|
Proceeds, before fees and expenses, to us(2) |
|
$ |
|
$ |
|
$ |
|
| (1) | Represents
a cash fee equal to 7.0% of the aggregate purchase price paid by investors in this offering.
We have also agreed to reimburse the placement agent for certain of its offering-related
expenses. See “Plan of Distribution” beginning on page 66 of this prospectus
for a description of the compensation to be received by the placement agent. |
| (2) | Does
not include proceeds from the exercise of the Warrants and Pre-Funded Warrants in cash, if
any. |
Investing in our securities involves a high
degree of risk. See “Risk Factors” beginning on page 9 of this prospectus to read about factors you should consider
before investing in our securities.
We anticipate that delivery of the securities against payment therefor
will be made on or before , 2024.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
Maxim Group LLC
The date of this prospectus is ,
2024
TABLE OF CONTENTS
ABOUT
THIS PROSPECTUS
The registration statement on Form S-1 of
which this prospectus forms a part and that we have filed with the U.S. Securities and Exchange Commission (“SEC”), includes
exhibits that provide more detail of the matters discussed in this prospectus. You should read this prospectus and the related exhibits
filed with the SEC, together with the additional information described under the heading “Where You Can Find More Information.”
You should rely only on the information contained
in this prospectus and the related exhibits, any prospectus supplement or amendment thereto, or to which we have referred you, before
making your investment decision. Neither we, nor the placement agent or any financial advisor engaged by us in connection with this offering,
have authorized anyone to provide you with additional information or information different from that contained in this prospectus. Neither
the delivery of this prospectus nor the sale of our securities means that the information contained in this prospectus is correct after
the date of this prospectus.
You should not assume that the information contained
in this prospectus, any prospectus supplement or amendments thereto, as well as information we have previously filed with the SEC, is
accurate as of any date other than the date on the front cover of the applicable document. Our business, financial condition, results
of operations and prospects may have changed since those dates. This prospectus, any prospectus supplement or amendments thereto do not
constitute an offer to sell, or a solicitation of an offer to purchase, the securities offered by this prospectus, any prospectus supplement
or amendments thereto in any jurisdiction to or from any person to whom or from whom it is unlawful to make such offer or solicitation
of an offer in such jurisdiction.
For investors outside the United States: Neither
we, nor any placement agent or financial advisor engaged by us in connection with this offering, have taken any action that would permit
this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than
in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and
observe any restrictions relating to, the offering of the securities covered hereby and the distribution of this prospectus outside of
the United States.
No person is authorized in connection with this
prospectus to give any information or to make any representations about us, the securities offered hereby or any matter discussed in
this prospectus, other than the information and representations contained in this prospectus. If any other information or representation
is given or made, such information or representation may not be relied upon as having been authorized by us. To the extent there is a
conflict between the information contained in this prospectus and any prospectus supplement, you should rely on the information in such
prospectus supplement, provided that if any statement in one of these documents is inconsistent with a statement in another document
having a later date, the statement in the document having the later date modifies or supersedes the earlier statement.
Neither we nor the placement agent have done
anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose
is required, other than the United States. You are required to inform yourself about, and to observe any restrictions relating to, this
offering and the distribution of this prospectus.
When used herein, unless the context requires
otherwise, references to the “WiSA,” “Company,” “we,” “our” and “us” refer
to WiSA Technologies, Inc., a Delaware corporation.
INDUSTRY
AND MARKET DATA
Unless otherwise indicated, information contained
in this prospectus concerning our industry and the market in which we operate, including our market position, market opportunity and
market size, is based on information from various sources, on assumptions that we have made based on such data and other similar sources
and on our knowledge of the markets for our products. These data sources involve a number of assumptions and limitations, and you are
cautioned not to give undue weight to such estimates.
We have not independently verified any third-party
information. While we believe the market position, market opportunity and market size information included in this prospectus is generally
reliable, such information is inherently imprecise. In addition, projections, assumptions and estimates of our future performance and
the future performance of the industry in which we operate is necessarily subject to a high degree of uncertainty and risk due to a variety
of factors, including those described in the section titled “Risk Factors” and elsewhere in this prospectus. These and other
factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.
PROSPECTUS
SUMMARY
This summary contains basic information
about us and this offering. Because it is a summary, it does not contain all of the information that you should consider before deciding
to invest in our securities. Before you decide to invest in our securities, you should read this entire prospectus carefully, any related
free writing prospectus that we have authorized for use in connection with the offering, including the information included under the
heading titled “Risk Factors” and our financial statements and the related notes included elsewhere in this prospectus.
Company Overview
We are an emerging technology company and
our primary business focus is to enable mainstream consumers and audio enthusiasts to experience high quality wireless audio. We intend
to continue selling our proprietary wireless modules to consumer electronics companies while also expanding our focus to implement a
lower cost solution by porting our IP software onto commercially available internet of things (or IoT), modules with integrated Wi-Fi
technology.
Our technology addresses some of the main
issues that we perceive are hindering the growth of the home theater: complexity of installation and cost. We believe that consumers
want to experience theater quality surround sound from the comfort of their homes. However, wired home theater systems often require
expensive audio-visual (or AV), receivers to decode the audio stream, leaving the consumer with the burden of concealing the wires. Hiring
a professional to hide the wires into the walls or floor is invasive, complicated, costly and time consuming. Further, people who rent
as opposed to own may not be able to install these systems as the installation construction needed may not be permitted under a lease
agreement. Our first-generation wireless technology addresses these problems by transmitting wireless audio to each speaker at Blu-ray
quality (uncompressed 24-bit audio up to 96 kHz sample rates) and emphasizing ease of setup. To our knowledge, our custom chips and modules
technology is one of the few technologies available today that can stream up to eight (8) separate wireless audio channels with
low latency, removing lip-sync issues between the audio and video sources. In addition, every speaker within a system that utilizes our
technology can be synchronized to less than one microsecond, thus eliminating phase distortion between speakers. Our first-generation
technology shows that wireless home theater systems are viable home audio solutions for the average consumer and audio enthusiast alike.
Current research and development investments
focus on developing Wi-Fi compatible IP software for transmitting multichannel wireless audio for which patent applications have been
submitted. A software solution enables smart devices that have Wi-Fi and video media to deliver surround sound audio and allows us to
port our wireless audio technology to popular Wi-Fi based modules and systems on a chip (or SOC), that is currently in production. The
Company’s “Discovery” module first announced in January 2021 is the first IoT module solution with our embedded
wireless audio software that specifically targets the high growth Dolby ATMOS soundbar market with a low-cost transceiver. The Discovery
module is capable of supporting ATMOS configurations up to 5.1.4. requiring five separate wireless audio channels. Our goal is to continue
to commercialize and improve performance of a software based-solution, which other brands can integrate into their devices, that will
(i) reduce integration costs for mass market use, (ii) utilize Wi-Fi for wireless connectivity, making it easy to integrate
into today’s high volume, low cost SOC and modules, (iii) provide a low power consumption option to allow for use in battery
powered devices, and (iv) provide compatibility with popular consumer electronic operating systems.
Recent Developments
October 2023 Series B Preferred
Stock Offering
On October 17,
2023, the Company completed a public offering (the “Series B Preferred Stock Offering”) consisting of an aggregate of
87,000 units (each a “Series B Preferred Unit” and collectively, the “Series B Preferred Units”), with
each Series B Preferred Unit consisting of (A) one (1) share of the Company’s Series B Convertible Preferred
Stock, par value $0.0001 per share (the “Series B Preferred Stock), and (B) two Series B Preferred Stock purchase
warrants (each, a “Series B Preferred Warrant” and collectively, the “Series B Preferred Warrants”),
with each Series B Preferred Warrant exercisable for one share of Series B Preferred Stock (the “Series B Preferred
Warrant Shares”), at the public offering price of $55.00 per Unit. The Series B Preferred Warrants are immediately exercisable,
each with an exercise price of $55.00 and expire on October 17, 2025. The Series B Preferred Stock Offering price of $55.00
per Unit reflects the issuance of the Series B Preferred Stock with an original issue discount (“OID”) of 45%.
The Series B
Preferred Units, the shares of Series B Preferred Stock, the Series B Preferred Warrants, the Series B Preferred Warrant
Shares and the shares of Common Stock issuable upon conversion of the Series B Preferred Stock, were offered and sold by the Company
pursuant to the Company’s Registration Statement on Form S-1 (Registration No. 333-274331), filed by the Company with
the SEC under the Securities Act of 1933, as amended (the “Securities Act”), including the Post-Effective Amendment No. 1
to the Registration Statement filed with the Commission pursuant to Rule 462(c) of the Securities Act that became effective
automatically upon filing on October 16, 2023 and the Post-Effective Amendment No. 2 to the Registration Statement filed with
the SEC pursuant to Rule 462(d) of the Securities Act that became effective automatically upon filing on October 17, 2023.
Maxim acted as the
exclusive placement agent for the Company in connection with the Series B Preferred Stock Offering. Pursuant to that certain placement
agency agreement, dated October 16, 2023, by and between the Company and Maxim (the “Series B Preferred Placement Agency
Agreement”), Maxim was paid a cash fee of 8.0% of the aggregate gross cash proceeds to the Company from the sale of the securities
in the Series B Preferred Stock Offering; provided, however, the cash fee was reduced to 5.0% from the sale of securities in the
Offering to those certain investors having a prior existing relationship with the Company. The Company agreed with Maxim not to offer
for sale, issue, sell, contract to sell, pledge or otherwise dispose of any shares of our Common Stock or securities convertible into
Common Stock for a period of 45 days for the Company and 90 days in the case of its officers and directors from the date of the Series B
Preferred Placement Agency Agreement without the prior written consent of Maxim. In addition, the Company also agreed not to enter into
variable rate transactions for 45 days after completing the Series B Preferred Stock Offering.
The gross proceeds
to the Company from the Series B Preferred Stock Offering were approximately $4.8 million. Subsequent to the pricing of the Series B
Preferred Stock Offering, the Company entered into letter agreements (the “Side Letters”) with certain holders of outstanding
Common Stock purchase warrants, pursuant to which the Company agreed to purchase from the holders an aggregate of 1,674,414 warrants
with an exercise price of $1.91, 2,462,264 warrants with an exercise price of $1.33 and 510,000 warrants with an exercise price of $1.29
(collectively, the “Former Warrants”), for $0.50 per Former Warrant. The Company used approximately $2.3 million in proceeds
from the Series B Preferred Stock Offering to repurchase the Former Warrants on October 17, 2023 (such repurchase transaction,
the “Warrant Repurchase”).
On October 16,
2023, the Company filed a Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock
(the “Series B COD”) with the Secretary of State of the State of Delaware designating 375,000 shares of the Company’s
authorized preferred stock as Series B Preferred Stock, with a liquidation preference of $100.00 per share, and further establishing
the powers, preferences and rights of the shares of Series B Preferred Stock and the qualifications, limitations or restrictions
thereof.
On or about February 2, 2024, the Company entered into side letter
agreements with the Holders (defined below), whereby the Holders agreed to (i) allow the Company to repurchase all 62,657 outstanding
shares of Series B Preferred Stock currently held by them at $100 per share with a portion of the proceeds received from this offering
and (ii) cancel all outstanding Series B Preferred Warrants to purchase up to 81,315 shares of Series B Preferred Stock, currently held
by them, immediately prior to the closing of this offering (collectively, the “Series B Repurchase and Cancellation Transaction”).
The Company and the Holders also agreed (i) to amend Annex A to the Inducement Agreements (as defined below) on the commencement date
of the required period of reservation of New Warrant Shares (as defined below) from the Company’s authorized and unissued shares
of Common Stock, from the date of issuance of the New Warrants (as defined) to the Warrant Inducement Stockholder Approval Date (as defined
below), and (ii) that any future issuance of New Warrants under the Inducement Agreements shall conform with the form of the New Warrant
as amended by the Warrant Amendment Agreement (as defined below). Following the Series B Repurchase and Cancellation Transaction, provided
no other holder of Series B Preferred Warrants exercise their respective Series B Preferred Warrants, there will be no share of Series
B Preferred Stock outstanding and there will be Series B Preferred Warrants to purchase up to 1,750 shares of Series B Preferred Stock
outstanding.
December 2023 Warrant Inducement
On December 5, 2023, we entered into warrant inducement letter agreements
(the “Inducement Agreements”) with certain holders of the Series B Preferred Warrants exercisable for up to 168,972 shares
of Series B Preferred Stock, issued pursuant to a public offering that closed on October 17, 2023 (the “Existing Warrants”).
Pursuant to the Inducement Agreements, the holders of the Existing Warrants (the “Holders”) agreed to a reduced exercise price
of $35.72 per share of Series B Preferred Stock, while maintaining the original fixed conversion price of $0.4147 (the “Conversion
Price”) of the Series B Preferred Stock, upon the exercise of any Existing Warrants during the period from the date of the Inducement
Agreements until the later of (i) the day immediately preceding the date stockholder approval is obtained which approval may be required
by the applicable rules and regulations of The Nasdaq Stock Market LLC from the Company stockholders with respect to each of (a) the issuance
of common stock purchase warrants (the “New Warrants”) to purchase up to an aggregate 81,491,198 shares of Common Stock in
connection with the Inducement Agreements and the shares of Common Stock issuable upon the exercise thereof (the “New Warrant Shares”)
and (b) if necessary, a proposal to amend the Certificate of Incorporation to increase the authorized share capital of the Company to
an amount sufficient to cover the New Warrant Shares or to effectuate a reverse stock split whereby the authorized shares capital is not
split and is sufficient to cover the New Warrant Shares (and such reverse split is effectuated) (the “Warrant Inducement Stockholder
Approval Date”), or (ii) January 15, 2024 (the “Inducement Period”). As of February 5, 2024, the Inducement Period is
still ongoing.
The aggregate gross proceeds to be
received by the Company will depend on the number of Existing Warrants actually exercised by the Holders. There is no guarantee that
all of the Existing Warrants will be exercised by the Holders in accordance with the Inducement Agreements. As of February 2, 2024,
the Holders have exercised Existing Warrants to purchase 87,657 shares of Series B Preferred Stock, and we have received
approximately $3.1 million in gross proceeds from such exercises (the “Warrant Inducement Transaction”).
In consideration of each Holders’ agreement
to exercise the Existing Warrants in accordance with the applicable Inducement Agreement, the Company agreed to issue each such Holder
common stock purchase warrants (the “New Warrants”), to purchase New Warrant Shares at a per share exercise price equal to
$0.1482, which New Warrants will contain 4.99/9.99% beneficial ownership limitations, be exercisable at any time on or after the Warrant
Inducement Stockholder Approval Date and expire five years from the Warrant Inducement Stockholder Approval Date.
Pursuant to the Inducement Agreements, the
Company agreed to file a registration statement to register the resale of the New Warrant Shares upon exercise of the New Warrants (the
“Resale Registration Statement”) as soon as reasonably practicable, but in any event no later than 45 calendar days following
the Warrant Inducement Stockholder Approval Date, and to use commercially reasonable efforts to have such Resale Registration Statement
declared effective by the SEC as soon as practicable and to keep such registration statement effective at all times until no such holder
owns any such New Warrants or New Warrant Shares issuable upon exercise thereof. Additionally, pursuant to the Inducement Agreements,
the Company has agreed to hold an annual or special meeting of stockholders on or prior to the date that is ninety (90) days following
the date of the Inducement Agreements for the purpose of obtaining stockholder approval of such transaction.
The Company engaged Maxim as exclusive financial
advisor (the “Advisor”) to provide financial services in connection with the transactions summarized above and, pursuant to
a certain financial advisory agreement, dated December 5, 2023, by and between the Company and the Advisor, has agreed to pay the
Advisor a cash financial advisory fee equal to 8% of the aggregate gross proceeds received from the Holders’ exercise of their Existing
Warrants. In addition, the Company has also agreed to reimburse the Advisor for its accountable legal expenses in connection with the
exercise of the Existing Warrants and the issuance of the New Warrants of up to $10,000.
On or about February 2, 2024, the Company and the Holders entered into
a warrant amendment agreement, whereby the Company amended Section 6(d) of the New Warrants on the commencement date of the required period
of reservation of New Warrant Shares from the Company’s authorized and unissued shares of Common Stock, from the date of issuance
of the New Warrants to the Warrant Inducement Stockholder Approval Date (the “Warrant Amendment Agreement”).
2024 Bridge Note and Warrant
On January 22, 2024, the Company entered
into securities purchase agreements (the “2024 Bridge Purchase Agreements”), with the Holders, pursuant to which the Company
agreed to issue to the Holders promissory notes in the aggregate principal amount of $1,000,000 (the “2024 Bridge Promissory Notes”)
and common stock purchase warrants (the “2024 Bridge Warrants”) to purchase up to an aggregate of 10,000,000 shares of the
Company’s Common Stock (“2024 Bridge Warrant Shares”), in consideration for $600,000 (the “2024 Bridge Private
Placement”).
Each of the 2024 Bridge Promissory Notes
matures on the earlier to occur of: (i) July 17, 2024 and (ii) the full or partial exercise of certain Series B Preferred Warrants currently
held by the applicable Holder, issuable for at least 9,322 shares of the Series B Preferred Stock upon such full or partial exercise.
The 2024 Bridge Promissory Notes do not bear interest except upon the occurrence of an event of default. The 2024 Bridge Promissory Notes
are not convertible into shares of Common Stock or Series B Preferred Stock.
At any time after issuance of the 2024
Bridge Promissory Notes, the Company may repay all or less than all of the outstanding principal amount of the 2024 Bridge Promissory
Notes, with no penalty or premium of any kind, upon at least one (1) days’ written notice to the applicable Holder.
The
2024 Bridge Warrants are not exercisable until after the date that stockholder approval is obtained to approve each of (i) the issuance
of the 2024 Bridge Warrant Shares issuable upon the exercise of the 2024 Bridge Warrants, as may be required by the applicable rules
and regulations of The Nasdaq Stock Market LLC and (ii) if necessary, a proposal to amend the Certificate of Incorporation to increase
the authorized share capital of the Company to an amount sufficient to cover the 2024 Bridge Warrant Shares or to effectuate a reverse
stock split whereby the authorized share capital is not split and is sufficient to cover the 2024 Bridge Warrant Shares (and such reverse
split is effectuated) (“Bridge Warrant Stockholder Approval”), and will expire on the fifth (5th)
anniversary of the date on which Bridge Warrant Stockholder Approval is received and deemed effective under Delaware law. The exercise
price of the 2024 Bridge Warrants is subject to downward adjustment, upon any subsequent transaction at a price lower than the exercise
price then in effect and standard adjustments in the event of certain events, such as stock splits, combinations, dividends, distributions,
reclassifications, mergers or other corporate changes.
The exercise of the 2024 Bridge Warrants
is subject to beneficial ownership limitations such that each Holder may not exercise the 2024 Bridge Warrant to the extent that such
exercise would result in the Holder being the beneficial owner in excess of 4.99% (or, upon election of the Holder, 9.99%) of the outstanding
shares of Common Stock, which beneficial ownership limitation may be increased up to 9.99% upon notice to the Company, provided that
any increase in such limitation will not be effective until 61 days following notice to the Company.
The closing of the 2024 Bridge Private
Placement occurred on January 23, 2024, pursuant to which, the Company issued the 2024 Bridge Promissory Notes and the 2024 Bridge Warrants
to the Holders in accordance with the 2024 Bridge Purchase Agreements.
Repayment of 2024 Bridge Promissory
Notes
Between January 26, 2024 and February 2, 2024, the 2024 Bridge Promissory
Notes were paid back in full.
Conversion of Series B Preferred
Stock
As of February 2, 2024, the holders
of Series B Preferred Stock have converted 115,278 shares of Series B Preferred Stock into 27,797,889 shares of Common Stock (the
“Conversion”).
Summary of Risk Factors
An investment in our securities involves
a high degree of risk. The occurrence of one or more of the events or circumstances described in the section titled “Risk Factors,”
alone or in combination with other events or circumstances, may materially adversely affect our business, financial condition and operating
results. In that event, the trading price of our securities could decline, and you could lose all or part of your investment. Such risks
include, but are not limited to:
| · | We
need financing in the near term to support our ongoing operations. If we do not raise sufficient
capital in the short term, we may be forced to cease operations, liquidate our assets and
possibly seek bankruptcy protection or engage in a similar process.; |
| · | Management
will have broad discretion over the use of the net proceeds from this offering, you may not
agree with how we use the proceeds and the proceeds may not be invested successfully; |
| · | This
is a best-efforts offering, no minimum amount of securities is required to be sold, and we
may not raise the amount of capital we believe is required for our business plans; |
| · | There
is no public market for the Units, Pre-Funded Units, Pre-Funded Warrants or the Warrants
being offered in this offering; |
| · | We
have incurred losses since inception; |
| · | Our
independent registered public accounting firm’s report contains an explanatory paragraph
that expresses substantial doubt about our ability to continue as a going concern; |
| · | You
may be unable to exercise the Warrants and they may have no value if Stockholder Approval
is not obtained; |
| · | We
have been notified by The Nasdaq Stock Market LLC of our failure to comply with certain continued
listing requirements and, if we are unable to regain compliance with all applicable continued
listing requirements and standards of The Nasdaq Stock Market LLC, our Common Stock could
be delisted from Nasdaq; |
| · | We
depend upon the timely delivery of products from our vendors and purchases from our partners
and customers; |
| · | Failure
to protect our intellectual property rights could adversely affect our business; and |
| · | The
market price for our Common Stock is particularly volatile given our 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 our share price. You may be unable to sell your shares of Common
Stock at or above the public offering price of the shares of Common Stock, which may result
in substantial losses to you. |
Corporate Information
We were formed as a Delaware limited liability
company on July 23, 2010 and converted into a Delaware corporation, effective December 31, 2017. Effective as of March 11,
2022, we changed our name to WiSA Technologies, Inc. We run our operations through WiSA Technologies, Inc., as well as through
our wholly-owned subsidiary, WiSA, LLC, a Delaware limited liability company.
Our principal executive office is located
at 15268 NW Greenbrier Pkwy, Beaverton, Oregon 97006 and our telephone number is (408) 627-4716. Our website address is www.wisatechnologies.com.
The website for our associated brands, manufacturers and influencers within the consumer electronics industry, the WiSA Association,
is http://www.wisaassociation.org. The information contained on, or that can be accessed through, our websites is not incorporated by
reference into this prospectus and is intended for informational purposes only.
THE
OFFERING
Units offered
by us |
|
Up
to 100,000,000 Units, each consisting of one share of our Common Stock and one Warrant to purchase one share of our Common Stock.
The Units have no stand-alone rights and will not be certificated or issued as stand-alone securities. The Common Stock and Warrants
are immediately separable and will be issued separately in this offering. |
|
|
|
Pre-Funded Units offered
by us |
|
We
are also offering to those purchasers, if any, whose purchase of Units in this offering would otherwise result in the purchaser,
together with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser,
9.99%) of our outstanding Common Stock immediately following the consummation of this offering, Pre-Funded Units, each consisting
of one Pre-Funded Warrant to purchase one share of our Common Stock and one Warrant to purchase one share of our Common Stock.
The Pre-Funded Units have no stand-alone rights and will not be certificated or issued as stand-alone securities. The Pre-Funded
Warrants and Warrants are immediately separable and will be issued separately in this offering. For each Pre-Funded Unit we sell,
the number of Units we are offering will be decreased on a one-for-one basis. Because we will issue a Warrant as part of each Unit
or Pre-Funded Unit, the number of Warrants sold in this offering will not change as a result of a change in the mix of the Units
and Pre-Funded Units sold. |
|
|
|
Warrants |
|
Each Warrant will have an exercise price equal to 100% of the public offering
price of each Unit sold in this offering, and shall not be exercisable until after the date that Stockholder Approval is obtained
and will expire on the fifth (5th) anniversary of the date on which Stockholder Approval is received and deemed effective under Delaware
law. To better understand the terms of the Warrants, you should carefully read the "Description of the Securities We Are Offering"
section of this prospectus. You should also read the form of Warrant, which is filed as an exhibit to the registration statement
of which this prospectus forms a part. This offering also relates to the shares of Common Stock issuable upon exercise of the Warrants. |
|
|
|
Pre-Funded Warrants |
|
Each
Pre-Funded Warrant will be immediately exercisable at an exercise price of $0.0001 per share of our Common Stock and may be exercised
at any time until exercised in full. To better understand the terms of the Pre-Funded Warrants, you should carefully read the “Description
of the Securities We are Offering” section of this prospectus. You should also read the form of Pre-Funded Warrant, which is
filed as an exhibit to the registration statement of which this prospectus forms a part. This offering also relates to the shares
of Common Stock issuable upon exercise of the Pre-Funded Warrants. |
Common Stock
outstanding immediately after the offering (1) |
|
134,562,545 shares of Common Stock (assuming the sale of all
securities offered hereby, and assuming no sale of any Pre-Funded Units and no exercise of the Warrants issued in this offering). |
|
|
|
Use of Proceeds |
|
We estimate
that the net proceeds to us from the offering will be approximately $9.0 million (calculated based
on an assumed public offering price of $0.10 per Unit), after deducting the placement agent fees
and estimated offering expenses payable by us, and assuming the sale of all Units offered hereby,
and assuming no sale of any Pre-Funded Units and no exercise of the Warrants issued in this offering.
However, this is a best-efforts offering with no minimum number of securities or amount of proceeds
as a condition to closing, and we may not sell all or any of these securities offered pursuant to
this prospectus; as a result, we may receive significantly less in net proceeds.
We intend to use the net proceeds of this
offering for repurchase of 62,657 outstanding shares of Series B Preferred Stock at $100 per share and other working capital and general
corporate purposes. See “Use of Proceeds” for a more complete description of the intended use of proceeds from this offering. |
|
|
|
Risk Factors |
|
An
investment in our securities is highly speculative and involves substantial risk. Please carefully consider the “Risk Factors”
section on page 9 and other information in this prospectus for a discussion of factors to consider before deciding to invest
in the securities offered hereby. Additional risks and uncertainties not presently known to us or that we currently deem to be immaterial
may also impair our business and operations. |
|
|
|
Voting Agreements |
|
We
will request that certain investors who purchase in excess of $100,000 in this
offering enter into a voting agreement pursuant to which such investors agree to vote all shares of Common Stock they beneficially
own on the closing date of this offering, including the shares of Common Stock purchased by them in this offering, with respect to
any proposals presented to the stockholders of the Company at the Company’s next special meeting of stockholders; provided,
however, that such voting agreement will not require such investor to vote its shares for or against any particular proposal or proposals,
whether or not such proposal or proposals are recommended by our board of directors (the “Board”). There can be no assurance
that such investors will agree to enter into a voting agreement in connection with our request.
|
Lock-up Agreements |
|
We
and our directors and officers have agreed with the placement agent not to offer for sale, issue, sell, contract to sell, pledge
or otherwise dispose of any of our Common Stock or securities convertible into common stock for a period of 60 days from the date
of this prospectus without the prior written consent of the placement agent. See “Plan of Distribution.” |
|
|
|
Participation Rights |
|
The
Company is party to a waiver agreement (the “Waiver Agreement”), dated September 1, 2023, with various purchasers
(the “Spring 2023 Purchasers”) to a securities purchase agreement, dated March 27, 2023 and April 7, 2023,
respectively, whereby, in consideration for a waiver on prohibition on variable rate transactions as set forth in each such securities
purchase agreement, the Company granted to the Spring 2023 Purchasers the right to participate in any subsequent financings of the
Company occurring on or prior to September 1, 2024, up to an amount equal to 90%, in aggregate, of the total dollar value raised
in any such financing, on the same terms and conditions provided to other investors. |
|
|
|
Nasdaq Symbol and Trading |
|
Our
Common Stock is listed on Nasdaq under the symbol “WISA”. There is no established trading market for the Units, Pre-Funded
Units, Warrants or Pre-Funded Warrants, and we do not expect a trading market for those securities to develop. We do not intend to
list the Units, Pre-Funded Units, Warrants or Pre-Funded Warrants on any securities exchange or other trading market. Without a trading
market, the liquidity of those securities will be extremely limited. |
Transfer Agent
and Warrant Agent |
|
VStock
Transfer, LLC, whose address is 18 Lafayette Place, Woodmere, NY 11598 and telephone number is (212) 828-8436. |
|
|
|
Reasonable best efforts |
|
We
have agreed to offer and sell the securities offered hereby to the purchasers through the placement agent. The placement agent is
not required to buy or sell any specific number or dollar amount of the securities offered hereby, but it will use its reasonable
best efforts to solicit offers to purchase the securities offered by this prospectus. See “Plan of Distribution” on page 66
of this prospectus. |
|
(1) |
Shares
of our Common Stock that will be outstanding after this offering is based on 34,562,545 shares of Common Stock outstanding as of
February 2, 2024, but excludes the following as of such date: (a) up to an aggregate of 43,258,183 shares of Common Stock issuable
upon exercise of our outstanding common stock purchase warrants (including up to an aggregate of 42,274,893 shares of Common Stock
issuable upon exercise of issued and outstanding New Warrants and up to an aggregate of 10,000,000 shares of Common Stock issuable
upon exercise of the 2024 Bridge Warrants), (b) 2,670,313 shares of Common Stock reserved for future issuance under the
Company’s 2018 Long-Term Stock Incentive Plan (the “LTIP”), the 2020 Stock Incentive Plan (the “2020
Plan”) and the Technical Team Retention Plan of 2022 (the “2022 Plan”), (c) an aggregate of 2,598 shares of Common
Stock issuable upon vesting of restricted stock units (“RSUs”) that were issued pursuant to the 2020 Plan and 2022 Plan,
(d) up to an aggregate of 35,139,112 shares of Common Stock issuable upon conversion of all outstanding shares of Series B Preferred
Stock (which shares of Series B Preferred Stock assumes the exercise of all 83,065 Series B Preferred Warrants outstanding), and (e)
up to 39,216,297 shares of Common Stock issuable upon exercise of 81,315 additional New Warrants that are not currently
outstanding, but which we will be obligated to issue, upon the Holders’ exercise of their remaining Existing Warrants pursuant
to the Inducement Agreements. |
Risk
factorS
An investment in the securities offered under
this prospectus involves a high degree of risk. You should carefully consider and evaluate all of the information contained in this prospectus
before you decide to invest in our securities. In particular, you should carefully consider and evaluate the risks and uncertainties
described under the heading “Risk Factors” in this prospectus. Investors are further advised that the risks described below
may not be the only risks we face. Additional risks that we do not yet know of, or that we currently think are immaterial, may also negatively
impact our business operations or financial results. Any of the risks and uncertainties set forth in this prospectus, could materially
and adversely affect our business, results of operations and financial condition, which in turn could materially and adversely affect
the value of our securities.
Risks Related to Our Financial Condition
We need financing in the near term to support
our ongoing operations. If we do not raise sufficient capital in the short term, we may be forced to cease operations, liquidate our
assets and possibly seek bankruptcy protection or engage in a similar process.
We
are currently operating at a loss and our cash position is insufficient to fund operations in the near term. As such, we
need additional financing to implement our business plan and to service our ongoing operations. We
believe that current cash on hand, prior to the receipt of any proceeds from this offering, is not sufficient to fund our immediate operational
needs. Assuming the sale of all securities offered hereby, after deducting placement agent fees, estimated offering expenses and approximately
$6.3 million in cash to complete the Series B Repurchase and Cancellation Transaction, we
anticipate that we would receive net proceeds of approximately $2.8 million from this offering. We
believe that such net proceeds, together with our existing cash and cash equivalents, will meet our capital needs for the next 2-3 months
and, thereafter, we will need to raise additional funds. There can be no assurance that we will be able to secure any needed
funding, or that if such funding is available, the terms or conditions would be acceptable to us. If we are unable to obtain additional
financing in the short term, we will be required to divest all or a portion of our business or otherwise liquidate, wind-up, restructure
or curtail our operations and product development timeline. We may seek additional capital
through a combination of equity offerings, such as this offering, debt financings and/or strategic collaborations. Debt financing, if
obtained, may involve agreements that include covenants limiting or restricting our ability to take specific actions, such as incurring
additional debt, and could increase our expenses and require that our assets secure such debt. Equity financing, if obtained, could result
in dilution to our then-existing stockholders and/or require such stockholders to waive certain rights and preferences. If such financing
is not available on satisfactory terms, or is not available at all, our ability to accelerate product development will be hindered, our
business and financial condition may be materially and adversely affected, and you may lose all or part of your investment.
We have incurred losses since inception.
We have incurred net losses since inception and
had an accumulated deficit of approximately $240.7 million as of September 30, 2023. If we are unsuccessful in implementing any
initiatives to improve our revenues to achieve profitability, it will have a material adverse impact on our business, prospects, operating
results and financial condition. There can be no assurance that the revenue that we generate will be able to support our operations or
meet our working capital needs.
Our independent registered public accounting
firm’s report contains an explanatory paragraph that expresses substantial doubt about our ability to continue as a going concern.
Our independent registered public accounting
firm has included in its report for the year ended December 31, 2022 an explanatory paragraph expressing substantial doubt about
our ability to continue as a going concern. Our consolidated financial statements have been prepared on a going concern basis, which
contemplates the realization of assets and the discharge of liabilities in the normal course of business. Our ability to continue as
a going concern is contingent upon, other factors, our ability to raise additional capital through sales of our securities, including
this offering, and incurrence of debt. Additionally, future capital requirements will depend on many factors, including the rate of revenue
growth, the selling price of our products, the expansion of sales and marketing activities, the timing and extent of spending on research
and development efforts and the continuing market acceptance of our products. These factors raise substantial doubt about our ability
to continue as a going concern. There is no assurance that additional financing will be available at terms acceptable to us or at all.
If we cannot continue as a viable entity, this could materially adversely affect the value of the shares of Common Stock.
Risks Related to Our Business and Industry
We depend upon the timely delivery of products
from our vendors and purchases from our partners and customers.
We depend on manufacturers and component customers
to deliver and purchase hardware and consumer electronics in quantities sufficient to meet customer demand. In addition, we depend on
these manufacturers and customers to introduce new and innovative products and components to drive industry sales. During the fourth quarter
of 2022 and on occasion during the fiscal year ended December 31, 2023, we experienced sales declines indirectly through disruption
in the supply chain for several of our industry partners or customers whose own supply chains have been disrupted based on a variety of
macroeconomic events that may or may not be related to the COVID-19 pandemic, which have resulted in delays throughout the consumer electronics
industry. Any material delay in the introduction or delivery, or limited allocations of products or offerings could result in reduced
sales by us, which could have a material adverse impact on our financial results. Any reduction in allocation of components or new hardware
platforms or other technological advances by vendors or our customers (in which our technology is part of their hardware offering) to
third parties such as big box retailers, could also have a material adverse impact on our financial results.
A small number of customers represent a
significant percentage of our revenue, so any loss of key customers could have a material adverse effect on our business.
A small number of our
customers represent a significant percentage of our revenue. Although we may have agreements with these customers, these agreements typically
do not require any minimum purchases and do not prohibit customers from using competing technologies or customers from purchasing products
and services from competitors. Because many of our markets are rapidly evolving, customer demand for our technologies and products can
shift quickly.
As of September 30,
2023, the Company had two customers accounting for 78% and 11% of accounts receivable. As of December 31, 2022, the Company had
two customers accounting for 62% and 12% of accounts receivable. The Company had three customers accounting for 40%, 28% and 21% of its
net revenue for the three months ended September 30, 2023. The Company had four customers accounting for 22%, 17%, 16% and 15% of
its net revenue for the nine months ended September 30, 2022.
A loss of any of our key customers could have
a material adverse effect on our business and results of operations.
We are reliant on module manufacturers
to produce the modules which we then sell to our customers and any change in their management or business could have a negative effect
on our operations.
Our revenue from the sale of modules to consumer
electronics and speaker companies depends in large part upon the availability of our modules that implement our technologies. Our manufacturers
incorporate our technologies into these modules, which are then incorporated in consumer entertainment products. We do not manufacture
these modules, but rather depend on manufacturers to produce the modules which we then sell to our customers. We do not control the manufacturers.
While we have a longstanding relationship with our manufacturers, there can be no assurance that our manufacturers will continue to timely
produce our modules. Change in management of our manufacturers or a change in their operations could negatively affect our production
and cause us to seek other manufacturers which we may not be able to obtain on the same or similar terms as our current manufacturers.
This could have a negative effect on our operations.
We currently rely on semiconductor manufacturers
to manufacture our semiconductors, and our failure to manage our relationship with our semiconductor manufacturers successfully could
negatively impact our business.
We rely on a single contractor in Japan for the
production of our transmit semiconductor chip and a single contractor in China for the production of our receive semiconductor chip.
Our reliance on these semiconductor manufacturers reduces our control over the manufacturing process, exposing us to risks, including
increase production costs and reduced product supply. If we fail to manage our relationships with these manufacturers effectively, or
if a contract manufacturer experiences delays, disruptions, or decides to end-of-life components that it manufactures for us, our ability
to ship products to our end-user customers could be impaired and our competitive position and reputation could be harmed. In addition,
any adverse change in our manufacturers’ financial or business condition could disrupt our ability to supply quality products to
our end-user customers. If we are required to change manufacturers, we may lose revenue, incur increased costs and damage our customer
relationships. In addition, qualifying a new semiconductor manufacturer and commencing production can be an expensive and lengthy process.
As a result of any of these aforementioned disruptions, we would experience a delay in our order fulfillment, and our business, operating
results and financial condition would be adversely affected.
Declines in or problems with the WiSA Association
membership could negatively affect our reputation.
Our
wholly owned subsidiary, WiSA, LLC, operates the “WiSA Association,” which is an association comprised of brands, manufacturers,
and influencers within the consumer electronics industry, with the purpose of promoting a standardized method of interoperability between
wireless audio components using our technology. We rely significantly on the WiSA Association to uphold the standards and
criteria of interoperable audio products. If we lose members or new technology is developed that is easier to incorporate than ours,
the WiSA Association may fail to maintain its active status and the sales of our modules could diminish as well. In addition, failure
of our members to adhere to our policies designed to provide interoperability between audio systems could undermine the integrity of
our brand.
Failure to stay on top of technology innovation could harm our
business model.
Our revenue growth will depend upon our success
in new and existing markets for our technologies. The markets for our technologies and products are defined by:
|
· |
rapid technological change; |
|
· |
new and improved technology
and frequent product introductions; |
|
· |
consumer demands; evolving
industry standards; and |
|
· |
technology and product
obsolescence. |
Our future success depends on our ability to
enhance our technologies and products and to develop new technologies and products that address the market needs in a timely manner.
Technology development is a complex, uncertain process requiring high levels of innovation, highly skilled engineering and development
personnel, and the accurate anticipation of technological and market trends. We may not be able to identify, develop, acquire, market,
or support new or enhanced technologies or products on a timely basis, if at all.
Failure to effectively develop and expand
our sales and marketing capabilities could harm our ability to increase our customer base and achieve broader market acceptance of our
modules.
To increase total customers and customer recognition
of the WiSA Association products and to achieve broader market acceptance of our technology, we will need to expand our sales and marketing
organization and increase our business development resources, including the vertical and geographic distribution of our sales force and
our teams of account executives focused on new accounts and responsible for renewal and growth of existing accounts.
Our business requires that our sales personnel
have particular expertise and experience in interoperability of audio systems, and the latest wireless audio technology. We may not achieve
revenue growth from expanding our sales force if we are unable to hire, develop and retain talented sales personnel with appropriate
experience, if our new sales personnel are unable to achieve desired productivity levels in a reasonable period of time or if our sales
and marketing programs are not effective.
Interruptions or performance problems associated
with technology and wireless technology outside of our control may adversely affect our business and results of operations.
We may in the future experience performance issues
due to a variety of factors, including wireless technology disruptions, human or software errors. If a wireless connection is compromised,
our products will not work as designed and our business could be negatively affected. In some instances, we may not be able to identify
the cause or causes of these performance problems within an acceptable period or a connection problem may be out of our control and could
deter customers from purchasing wireless audio components.
We expect to continue to make significant investments
to maintain and improve the performance of our modules. To the extent that we do not effectively address capacity constraints, upgrade
our systems as needed and continually develop our technology to accommodate actual and anticipated changes in technology, our business,
operating results and financial condition may be adversely affected.
Real or perceived errors, failures or bugs
in our modules could adversely affect our operating results and growth prospects.
Because our modules are complex, undetected errors,
failures or bugs may occur. Our module is installed and used in numerous audio systems of different brands with different operating systems,
system management software, and equipment and networking configurations, which may cause errors or failures of our technology. Despite
our testing, errors, failures or bugs may not be found in our modules until it is released to our customers. Moreover, our customers
could incorrectly implement or inadvertently misuse our modules, which could result in customer dissatisfaction and adversely impact
the perceived quality or utility of our products as well as our brand.
Any of these real or perceived errors, compatibility
issues, failures or bugs in our modules could result in negative publicity, reputational harm, loss of competitive position or claims
by customers for losses sustained by them. In such an event, we may be required, or may choose, for customer relations or other reasons,
to expend additional resources to correct the problem. Alleviating any of these problems could require significant expenditures of our
capital and other resources and could cause interruptions or delays in the use of our solutions, which could cause us to lose existing
or potential customers and could adversely affect our operating results and growth prospects.
We rely on the cooperation of our customers to install our modules
in their audio products.
Our modules are sold to our customers who are
consumer electronics companies. Our customers install the modules into their products. Our customers’ audio products are sold to
the public who must then install the audio system into their homes or businesses. We do not oversee installation of our products and
therefore have no control over the result. If a module is not installed correctly in a customer product or an end consumer does not install
their audio system correctly, our technology may not work properly, which could result in customer dissatisfaction or have a material
adverse impact on our reputation, our business and our financial results.
If we do not or cannot maintain cutting
edge technology and compatibility of our modules with products that our customers use, our business could suffer.
Our customers integrate our modules into their
products. The functionality and popularity of our technology depends, in part, on our ability to produce modules that integrate into
our customers’ products. Our customers may change the features of their technologies and audio systems may advance technologically.
Such changes or advancements could functionally limit or terminate the utility of our product, which could negatively impact our customer
service and harm our business. If we fail to maintain cutting edge technology and compatibility with the products our customers produce,
we may not be able to offer the functionality that our customers need, and our customers may not purchase our modules, which would negatively
impact our ability to generate revenue and have a material adverse impact on our business.
Our future quarterly results of operations
may fluctuate significantly due to a wide range of factors, which makes our future results difficult to predict.
Our revenues and results of operations could
vary significantly from quarter to quarter because of various factors, many of which are outside of our control, including:
|
· |
the expansion of our customer
base; |
|
· |
the renewal of agreements
with, and expansion of coverage by, existing customers; |
|
· |
the size, timing and terms
of our sales to both existing and new customers; |
|
· |
the introduction of products or services
that may compete with us for the limited funds available to our customers, and changes in the cost of such products or services; |
|
· |
changes in our customers’
and potential customers’ budgets; |
|
· |
our ability to control
costs, including our operating expenses; |
|
· |
our ability to hire, train
and maintain our direct sales force, engineers, and marketing employees; |
|
· |
the timing of satisfying
revenue recognition criteria in connection with initial deployment and renewals; and |
|
· |
general economic and political
conditions, both domestically and internationally; and |
|
· |
the effects of outbreaks,
epidemics or pandemics of contagious diseases. |
Any one of these or other factors discussed elsewhere
in this prospectus may result in fluctuations in our revenues and operating results, meaning that quarter-to-quarter comparisons of our
revenues, results of operations and cash flows may not necessarily be indicative of our future performance.
Because of the fluctuations described above,
our ability to forecast revenues is limited and we may not be able to accurately predict our future revenues or results of operations.
In addition, we base our current and future expense levels on our operating plans and sales forecasts, and our operating expenses are
expected to be relatively fixed in the short term. Accordingly, we may not be able to reduce our costs sufficiently to compensate for
an unexpected shortfall in revenues, and even a small shortfall in revenues could disproportionately and adversely affect our financial
results for that quarter. The variability and unpredictability of these and other factors could result in our failing to meet or exceed
financial expectations for a given period.
Our sales are subject to fluctuation as a result of seasonality,
which is outside of our control.
Our sales are subject to the seasonality of when
consumers buy electronic products, generally in the third quarter leading up to the year-end holiday season. Our customers’ plans
to complete and ship new products to meet this seasonal peak can critically impact our financial results should they miss the holiday
season. As a result of these factors, our financial results for any single quarter or for periods of less than a year are not necessarily
indicative of the results that may be achieved for a full fiscal year.
Our sales are subject to fluctuation as
a result of our customers’ new product introduction timelines and end-user adoption of our customers’ retail products, both
of which are outside of our control.
We, in conjunction with our customers, are launching
a new technology to the retail and consumer market. The consumer adoption rate at retail is a critical component of our financial success
and is currently an unknown component of our financial plans. The variability and unpredictability of these and other factors could result
in our failing to meet or exceed financial expectations for a given period. As a result of these factors, our financial results for any
single quarter or for periods of less than a year are not necessarily indicative of the results that may be achieved for a full fiscal
year.
We conduct international operations, which exposes us to significant
risks.
Our headquarters are located in Oregon, but we
also have employees in Taiwan and Korea and representatives in China and Japan. Operating in international markets requires significant
resources and management attention and subjects us to regulatory, economic and political risks in addition to those we already face in
the United States. In addition, we invest time and resources in understanding the regulatory framework and political environments of
our customers overseas in order to focus our sales efforts. Because such regulatory and political considerations are likely to vary across
jurisdictions, this effort requires additional time and attention from our sales team and could lead to a sales cycle that is longer
than our typical process for sales in the United States. We also may need to hire additional employees and otherwise invest in our international
operations in order to reach new customers. Because of our limited experience with international operations as well as developing and
managing sales in international markets, our international efforts may not be successful.
In addition, we will face risks in doing business
internationally that could adversely affect our business, including:
|
· |
the potential impact of
currency exchange fluctuations; |
|
|
|
|
· |
the difficulty of staffing and managing international operations and the increased operations, travel, shipping and compliance
costs associated with having customers in numerous international locations; |
|
|
|
|
· |
potentially greater difficulty
collecting accounts receivable and longer payment cycles; |
|
|
|
|
· |
the need to offer customer
support in various languages; |
|
|
|
|
· |
challenges
in understanding and complying with local laws, regulations and customs in foreign jurisdictions; |
|
|
|
|
· |
export controls and economic sanctions administered by the Department of Commerce Bureau of Industry
and Security and the Treasury Department’s Office of Foreign Assets Control; |
|
|
|
|
· |
compliance with various anti-bribery
and anti-corruption laws such as the Foreign Corrupt Practices Act and United Kingdom Bribery Act of 2010; |
|
|
|
|
· |
tariffs and other non-tariff
barriers, such as quotas and local content rules; |
|
|
|
|
· |
more limited protection
for our intellectual property in some countries; |
|
|
|
|
· |
adverse or uncertain tax
consequences as a result of international operations; |
|
|
|
|
· |
currency control regulations,
which might restrict or prohibit our conversion of other currencies into U.S. dollars; |
|
|
|
|
· |
restrictions on the transfer
of funds; |
|
|
|
|
· |
deterioration of political
relations between the United States and other countries; and |
|
|
|
|
· |
political or social unrest or economic
instability in a specific country or region in which we operate, which could have an adverse impact on our operations in that
location. |
Also, we expect that due to costs related to
our international efforts and the increased cost of doing business internationally, we will incur higher costs to secure sales to international
customers than the comparable costs for domestic customers. As a result, our financial results may fluctuate as we expand our operations
and customer base worldwide.
Our failure to manage any of these risks successfully
could harm our international operations and adversely affect our business, operating results and financial condition.
We are dependent on the continued services
and performance of our senior management and other key personnel, the loss of any of whom could adversely affect our business.
Our future success depends in large part on the
continued contributions of our senior management and other key personnel. In particular, the leadership of key management personnel is
critical to the successful management of our Company, the development of our products, and our strategic direction. We also depend on
the contributions of key technical personnel.
We do not maintain “key person” insurance
for any member of our senior management team or any of our other key employees. Our senior management and key personnel are all employed
on an at-will basis, which means that they could terminate their employment with us at any time, for any reason and without notice. The
loss of any of our key management personnel could significantly delay or prevent the achievement of our development and strategic objectives
and adversely affect our business.
Cyber-security incidents, including data
security breaches or computer viruses, could harm our business by disrupting our delivery of products or services, damaging our reputation
or exposing us to liability.
We receive, process, store and transmit, often
electronically, the data of our customers and others, much of which is confidential. Unauthorized access to our computer systems or stored
data could result in the theft, including cyber-theft, or improper disclosure of confidential information, and the deletion or modification
of records could cause interruptions in our operations. These cyber-security risks increase when we transmit information from one location
to another, including over the Internet or other electronic networks. Despite the security measures we have implemented, our facilities,
systems and procedures, and those of our third-party service providers, may be vulnerable to security breaches, acts of vandalism, software
viruses, misplaced or lost data, programming or human errors or other similar events which may disrupt our delivery of services or expose
the confidential information of our customers and others. Any security breach involving the misappropriation, loss or other unauthorized
disclosure or use of confidential information of our customers or others, whether by us or a third party, could subject us to civil and
criminal penalties, have a negative impact on our reputation, or expose us to liability to our customers, third parties or government
authorities. We are not aware of such breaches to date. There can be no assurance that we will be able to effectively handle a failure
of our information systems, or that we will be able to restore our operational capacity in a timely manner to avoid disruption to our
business. Any of these developments could have a material adverse effect on our business, financial condition and results of operations.
Future acquisitions may have a material
adverse effect on our ability to manage our business and our results of operations and financial condition.
We may acquire businesses, technologies, services,
or products which are complementary to our business. Future acquisitions may expose us to potential risks, including risks associated
with the integration of new operations, services, and personnel, unforeseen or hidden liabilities, the diversion of resources and
management attention from our existing business and technology, our potential inability to generate sufficient revenue to offset new
costs, the costs and expenses incurred in connection with such acquisitions, or the potential loss of or harm to relationships with suppliers,
employees, and customers resulting from our integration of new businesses.
Any of the potential risks listed above could
have a material adverse effect on our ability to manage our business or our results of operations and financial condition. In addition,
we may need to fund any such acquisitions through the incurrence of additional debt or the sale of additional debt or equity securities,
which would result in increased debt service obligations, including additional operating and financing covenants, or liens on our assets,
that would restrict our operations, or dilution to our shareholders.
Changes in financial accounting standards
may cause adverse and unexpected revenue fluctuations and impact our reported results of operations.
A change in accounting standards or practices
could harm our operating results and may even affect our reporting of transactions completed before the change is effective. New accounting
pronouncements and varying interpretations of accounting pronouncements have occurred and may occur in the future. Changes to existing
rules or the questioning of current practices may harm our operating results or the way we conduct our business.
Climate change may have a long-term impact on our business.
Climate change may have an increasingly adverse
impact on our business and those of our customers and suppliers. Water and energy availability and reliability in the communities where
we conduct business is critical. Climate change, its impact on our supply chain and critical infrastructure worldwide, and its potential
to increase political instability in regions where we, our customers and suppliers do business, may disrupt our business and may cause
us to experience higher attrition, losses and costs to maintain or resume operations. Although we maintain a program of insurance coverage
for a variety of property, casualty, and other risks, the types and amounts of insurance we obtain vary depending on availability and
cost. Some of our policies have large deductibles and broad exclusions, and our insurance providers may be unable or unwilling to pay
a claim. Losses not covered by insurance may be large, which could harm our results of operations and financial condition.
Our operations, products and services, as well
as those of our suppliers and customers, may also be subject to climate-related laws, regulations and lawsuits. Regulations such as carbon
taxes, fuel or energy taxes, and pollution limits could result in greater direct costs, including costs associated with changes to manufacturing
processes or the procurement of raw materials used in manufacturing processes, increased levels of capital expenditures to improve facilities
and equipment, and higher compliance and energy costs to reduce emissions, as well as greater indirect costs resulting from our customers,
suppliers or both incurring additional compliance costs that are passed on to us. These costs and restrictions could harm our business
and results of operations by increasing our expenses or requiring us to alter our operations and product design activities. Stockholder
groups may find us insufficiently responsive to the implications of climate change, and therefore we may face legal action or reputational
harm. We may also experience contractual disputes due to supply chain delays arising from climate change-related disruptions, which could
result in increased litigation and costs.
We also face risks related to business trends
that may be influenced by climate change concerns. Stockholder advocacy groups, certain institutional investors, investment funds, other
market participants, stockholders and customers have focused increasingly on the environmental, social and corporate governance (“ESG”)
and sustainability practices of companies, including those associated with climate change and human rights. These parties have placed
increased importance on the implications of the social cost of their investments. If our ESG practices do not meet stockholder or other
industry expectations and standards, which continue to evolve, our brand, reputation and business activities may be negatively impacted.
Any sustainability disclosures we make may include our policies and practices on a variety of social and ethical matters, including corporate
governance, environmental compliance, employee health and safety practices, human capital management, product quality, supply chain management,
and talent diversity and inclusion practices. It is possible that our stockholders may not be satisfied with our ESG practices or the
speed of their adoption. We could also incur additional costs and require additional resources to monitor, report, and comply with various
ESG practices, or choose not to conduct business with potential customers, or discontinue or not expand business with existing customers,
due to our policies. Also, our failure, or perceived failure, to meet the standards included in any sustainability disclosure could have
a material negative impact on our reputation and business activities.
We face intense competition in our industry,
and we may not be able to compete successfully in our target markets.
The digital audio, consumer electronics and entertainment
markets are characterized by intense competition, subject to rapid change, and are significantly affected by new product introductions
and other market activities of industry participants. Our competitors include many large domestic and international companies that have
substantially greater financial, technical, marketing, distribution and other resources, greater name recognition, a longer operating
history, broader product lines, lower cost structures and longer-standing relationships with customers and suppliers than we do. As a
result, our competitors may be able to respond better to new or emerging technologies or standards and to changes in customer requirements.
Further, some of our competitors are in a better
financial and marketing position from which to influence industry acceptance of a particular product standard or a competing technology
than we are. Our competitors may also be able to devote greater resources to the development, promotion and sale of products, and may
be in a position to deliver competitive products at a lower price than we can, along with the potential to conduct strategic acquisitions,
joint ventures, subsidies and lobbying industry and government standards, hire more experienced technicians, engineers and research and
development teams than we can. As a result, we may not be able to compete effectively against any of these organizations.
Our ability to compete in our current target
markets and future markets will depend in large part on our ability to successfully develop, introduce and sell new and enhanced products
or technologies on a timely and cost-effective basis and to respond to changing market requirements. We expect our competitors to continue
to improve the performance of their current products and potentially reduce their prices. In addition, our competitors may develop future
generations and enhancements of competitive products or new or enhanced technologies that may offer greater performance and improved
pricing or render our technologies obsolete. If we are unable to match or exceed the improvements made by our competitors, our market
position and prospects could deteriorate and our net product sales could decline.
Risks Related to Our Intellectual Property
Failure to protect our intellectual property rights could adversely
affect our business.
Our success depends, in part, on our ability
to protect proprietary methods and technologies that we develop or license under patent and other IP laws of the United States, so that
we can prevent others from using our inventions and proprietary information. If we fail to protect our IP rights adequately, our competitors
might gain access to our technology, and our business might be adversely affected. However, defending our IP rights might entail significant
expenses. Any of our patent rights, copyrights, trademarks or other IP rights may be challenged by others, weakened or invalidated through
administrative process or litigation.
As of February 2, 2024, we had 13 issued
and 10 pending U.S. patents covering our technology. We also license issued U.S. patents from others. The patents that we own or license
from others (including those that may be issued in the future) may not provide us with any competitive advantages or may be challenged
by third parties, and our patent applications may never be granted.
Additionally, the process of obtaining patent
protection is expensive and time-consuming, and we may not be able to prosecute all necessary or desirable patent applications at a reasonable
cost or in a timely manner. Even if issued, there can be no assurance that these patents will adequately protect our IP, as the legal
standards relating to the validity, enforceability and scope of protection of patent and other IP rights are uncertain.
Any patents that are issued may subsequently
be invalidated or otherwise limited, allowing other companies to develop offerings that compete with ours, which could adversely affect
our competitive business position, business prospects and financial condition. In addition, issuance of a patent does not guarantee that
we have a right to practice the patented invention. Patent applications in the United States are typically not published until 18 months
after filing or, in some cases, not at all, and publications of discoveries in industry-related literature lag behind actual discoveries.
We cannot be certain that third parties do not have blocking patents that could be used to prevent us from marketing or practicing our
patented software or technology.
Effective patent, trademark, copyright and trade
secret protection may not be available to us in every country in which our software is available. The laws of some foreign countries
may not be as protective of IP rights as those in the United States (in particular, some foreign jurisdictions do not permit patent protection
for software), and mechanisms for enforcement of IP rights may be inadequate. Additional uncertainty may result from changes to IP legislation
enacted in the United States, including the recent America Invents Act, and other national governments and from interpretations of the
IP laws of the United States and other countries by applicable courts and agencies. Accordingly, despite our efforts, we may be unable
to prevent third parties from infringing upon or misappropriating our IP.
We rely in part on trade secrets, proprietary
know-how and other confidential information to maintain our competitive position. Although we endeavor to enter into non-disclosure agreements
with our employees, licensees and others who may have access to this information, we cannot assure you that these agreements or other
steps we have taken will prevent unauthorized use, disclosure or reverse engineering of our technology. Moreover, third parties may independently
develop technologies or products that compete with ours, and we may be unable to prevent this competition.
We might be required to spend significant resources
to monitor and protect our IP rights. We may initiate claims or litigation against third parties for infringement of our proprietary
rights or to establish the validity of our proprietary rights. Litigation also puts our patents at risk of being invalidated or interpreted
narrowly and our patent applications at risk of not issuing. Additionally, we may provoke third parties to assert counterclaims against
us. We may not prevail in any lawsuits that we initiate, and the damages or other remedies awarded, if any, may not be commercially viable.
Any litigation, whether or not resolved in our favor, could result in significant expense to us and divert the efforts of our technical
and management personnel, which may adversely affect our business, operating results, financial condition and cash flows.
We may be subject to IP rights claims by
third parties, which are extremely costly to defend, could require us to pay significant damages and could limit our ability to use certain
technologies.
Companies in the software and technology industries,
including some of our current and potential competitors, own large numbers of patents, copyrights, trademarks and trade secrets and frequently
enter into litigation based on allegations of infringement or other violations of IP rights. In addition, many of these companies have
the capability to dedicate substantially greater resources to enforce their IP rights and to defend claims that may be brought against
them. The litigation may involve patent holding companies or other adverse patent owners that have no relevant product revenues and against
which our patents may therefore provide little or no deterrence. We have received, and may in the future receive, notices that claim
we have misappropriated, misused, or infringed other parties’ IP rights, and, to the extent we gain greater market visibility,
we face a higher risk of being the subject of IP infringement claims.
There may be third-party IP rights, including
issued or pending patents that cover significant aspects of our technologies or business methods. Any IP claims, with or without merit,
could be very time-consuming, could be expensive to settle or litigate and could divert our management’s attention and other resources.
These claims could also subject us to significant liability for damages, potentially including treble damages if we are found to have
willfully infringed patents or copyrights. These claims could also result in our having to stop using technology found to be in violation
of a third party’s rights. We might be required to seek a license for the IP, which may not be available on reasonable terms or
at all. Even if a license were available, we could be required to pay significant royalties, which would increase our operating expenses.
As a result, we may be required to develop alternative non-infringing technology, which could require significant effort and expense.
If we cannot license or develop technology for any infringing aspect of our business, we would be forced to limit or stop sales of our
software and may be unable to compete effectively. Any of these results would adversely affect our business, operating results, financial
condition and cash flows.
Risks Related to this Offering and Ownership
of Our Securities
Our management
will have broad discretion over the use of the net proceeds from this offering, you may not agree with how we use the proceeds and the
proceeds may not be invested successfully.
Our management will
have broad discretion as to the use of the net proceeds from this offering and could use them for purposes other than those contemplated
at the time of commencement of this offering. Accordingly, you will be relying on the judgment of our management regarding the use of
these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being
used appropriately. It is possible that, pending their use, we may invest the net proceeds in a way that does not yield a favorable,
or any, return for us. The failure of our management to use such funds effectively could have a material adverse effect on our business,
financial condition, operating results and cash flows.
This is a best-efforts
offering, no minimum amount of securities is required to be sold, and we may not raise the amount of capital we believe is required for
our business plans.
The placement
agent has agreed to use their reasonable best efforts to solicit offers to purchase the securities in this offering. The placement agent
has no obligation to buy any of the securities from us or to arrange for the purchase or sale of any specific number or dollar amount
of the securities. There is no required minimum number of securities that must be sold as a condition to completion of this offering.
Because there is no minimum offering amount required as a condition to the closing of this offering, the actual offering amount, placement
agent fees and proceeds to us are not presently determinable and may be substantially less than the maximum amounts set forth herein.
We may sell fewer than all of the securities offered hereby, which may significantly reduce the amount of proceeds received by us, and
investors in this offering will not receive a refund in the event that we do not sell an amount of securities sufficient to support our
continued operations. Thus, we may not raise the amount of capital we believe is required for our operations and may need to raise additional
funds. Such additional fundraises may not be available or available on terms acceptable to us.
Without obtaining adequate capital funding
or improving our financial performance, we may not be able to continue as a going concern.
Our recurring losses from operations and negative
cash flows raise substantial doubt about our ability to continue as a going concern without additional capital-raising activities. As
a result, we have concluded that there is substantial doubt about our ability to continue as a going concern. Failure to secure additional
funding may require us to modify, delay, or abandon some of our planned future expansion or development, or to otherwise enact operating
cost reductions available to management, which could have a material adverse effect on our business, operating results, financial condition,
and ability to achieve our intended business objectives. Please also see “Risk Factors – Risks Related to Our Financial Condition
– We need financing in the near term to support our ongoing operations. If we do not raise sufficient capital in the short term,
we may be forced to cease operations, liquidate our assets and possibly seek bankruptcy protection or engage in a similar process.”
There is no public market for the Units,
Pre-Funded Units, Pre-Funded Warrants or the Warrants being offered in this offering.
There is no established public trading market
for the Units, Pre-Funded Units, Pre-Funded Warrants or the Warrants being offered in this offering, and we do not expect a market to
develop. In addition, we do not intend to apply to list the Pre-Funded Warrants or the Warrants on any securities exchange or nationally
recognized trading system, including Nasdaq. Without an active market, the liquidity of the Pre-Funded Warrants or the Warrants will
be limited.
The Pre-Funded Warrants and the Warrants
are speculative in nature.
Following this offering, the market value
of the Pre-Funded Warrants and Warrants, if any, is uncertain and there can be no assurance that the market value of the Pre-Funded Warrants
and Warrants will equal or exceed their imputed public offering price. In the event that our Common Stock price does not exceed the exercise
price of the Warrants during the period when such Warrants are exercisable, such Warrants may not have any value. Furthermore, if Stockholder
Approval is not obtained, the Warrants will not be exercisable.
Holders of the Pre-Funded Warrants and
Warrants will not have rights of holders of our shares of Common Stock until such Warrants and Pre-Funded Warrants are exercised.
The Warrants and Pre-Funded Warrants in this
offering do not confer any rights of share ownership on their holders, but rather merely represent the right to acquire shares of our
Common Stock at a fixed price. Until holders of Warrants and Pre-Funded Warrants acquire shares of our Common Stock upon exercise of
the Warrants and Pre-Funded Warrants, as applicable, holders of Warrants and Pre-Funded Warrants will have no rights with respect to
our shares of Common Stock underlying such Warrants and Pre-Funded Warrants.
You may be unable to exercise the Warrants
and they may have no value if Stockholder Approval is not obtained.
The Warrants shall not be exercisable until
after the date that Stockholder Approval is obtained, and the Warrants will expire five (5) years after the date we obtain Stockholder
Approval. If we are unable to obtain such Stockholder Approval, the Warrants may have no value and may expire worthless. In no event
may the Warrants be net cash settled, until they initially become exercisable. We will request that certain investors in this offering
whose investment exceeds $100,000 enter into a voting agreement whereby each such investor will agree to vote all shares of Common Stock
that they beneficially own on the closing date of this offering with respect to any proposals presented to the stockholders of the Company
at the Company’s next meeting of its stockholders, including the contemplated reverse stock split proposal. However, existing holders
of Common Stock may have an incentive to vote against the proposal for such a reverse stock split in order to prevent dilution in their
interests by the shares of Common Stock issuable upon exercise of the Warrants. In addition, there is no guarantee that any investors
in this offering will agree to enter into any voting agreement.
We have been notified by The Nasdaq Stock
Market LLC of our failure to comply with certain continued listing requirements and, if we are unable to regain compliance with all applicable
continued listing requirements and standards of The Nasdaq Stock Market LLC, our Common Stock could be delisted from Nasdaq.
Our Common Stock is currently listed on Nasdaq.
In order to maintain that listing, we must satisfy minimum financial and other continued listing requirements and standards, including
those regarding director independence and independent committee requirements, minimum stockholders’ equity, minimum share price,
and certain corporate governance requirements. There can be no assurances that we will be able to comply with the applicable listing
standards of The Nasdaq Stock Market LLC.
On
October 5, 2023, we received written notice from the Nasdaq Listing Qualifications staff (the “Staff”), notifying
us that we are not in compliance with the minimum bid price requirement for continued listing on Nasdaq, as set forth under Nasdaq Listing
Rule 5550(a)(2) (the “Minimum Bid Price Requirement”), because the closing bid price of the Common Stock was below
$1.00 per share for the previous thirty (30) consecutive business days. Pursuant to Nasdaq Listing Rule 5810(c)(3)(A), we were provided
with a compliance period of 180 calendar days, or until April 2, 2024, to regain compliance with the Minimum Bid Price Requirement.
In the event we do not regain compliance by April 2, 2024, we may be eligible for additional time to regain compliance.
On November 17, 2023, we received a letter
from the Nasdaq Listing Qualifications staff (the “Staff”) notifying us that we were not in compliance with Nasdaq Listing
Rule 5550(b)(1), which requires companies listed on Nasdaq to maintain a minimum of $2,500,000 in stockholders’ equity for
continued listing (the “Stockholders’ Equity Requirement”). We reported stockholders’ equity (deficit) of $885,000
in our Quarterly Report on Form 10-Q for the quarter ended September 30, 2023, and, as a result, we did not satisfy the Stockholders’
Equity Requirement pursuant to Listing Rule 5550(b)(1). Pursuant to the letter, we were required to submit to Nasdaq a plan to regain
compliance with the Stockholders’ Equity Requirement by January 2, 2024. We submitted to Nasdaq a plan to regain and demonstrate
long-term Nasdaq Listing Qualifications compliance on January 2, 2024.
If the Staff accepts the plan, the Staff may
grant the Company an extension of up to 180 calendar days from November 17, 2023 to evidence compliance with the Stockholders’
Equity Requirement. If the Staff does not accept the Company’s plan, the Company may request a hearing, at which hearing it would
present its plan to a Nasdaq Hearings Panel and request the continued listing of its securities on Nasdaq pursuant to and pending the
completion of such plan. During the pendency of the hearing process, the Company’s securities would continue to be listed on Nasdaq.
There can be no assurances that we will be able
to regain compliance, or, in the event we regain compliance, maintain continued compliance. If we are unable to regain or maintain compliance
with the Nasdaq continued listing requirements, our Common Stock will be delisted from Nasdaq.
In the event that our Common Stock is delisted
from Nasdaq, as a result of our failure to comply with the Stockholders’ Equity Requirement, or the Minimum Bid Price Requirement,
or due to our failure to continue to comply with any other requirement for continued listing on Nasdaq, and is not eligible for listing
on another exchange, trading in the shares of our Common Stock could be conducted in the over-the-counter market or on an electronic
bulletin board established for unlisted securities such as the Pink Sheets or the OTC Bulletin Board. In such event, it could become
more difficult to dispose of, or obtain accurate price quotations for, our Common Stock, and it would likely be more difficult to obtain
coverage by securities analysts and the news media, which could cause the price of our Common Stock to decline further. Also, it may
be difficult for us to raise additional capital if we are not listed on a national exchange.
In the event that our Common Stock is delisted
from Nasdaq, U.S. broker-dealers may be discouraged from effecting transactions in shares of our Common Stock because they may be considered
penny stocks and thus be subject to the penny stock rules.
The SEC has adopted a number of rules to
regulate “penny stock” that restricts transactions involving stock which is deemed to be penny stock. Such rules include
Rules 3a51-1, 15g-1, 15g-2, 15g-3, 15g-4, 15g-5, 15g-6, 15g-7, and 15g-9 under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). These rules may have the effect of reducing the liquidity of penny stocks. “Penny stocks”
generally are equity securities with a price of less than $5.00 per share (other than securities registered on certain national securities
exchanges or quoted on Nasdaq if current price and volume information with respect to transactions in such securities is provided by
the exchange or system). Our shares of Common Stock have in the past constituted, and may again in the future constitute, “penny
stock” within the meaning of the rules. The additional sales practice and disclosure requirements imposed upon U.S. broker-dealers
for sales of penny stocks may discourage such broker-dealers from effecting transactions in shares of our Common Stock, which could severely
limit the market liquidity of such shares of Common Stock and impede their sale in the secondary market.
A U.S. broker-dealer selling penny stock to anyone
other than an established customer or “accredited investor” (generally, an individual with a net worth in excess of $1,000,000
or an annual income exceeding $200,000, or $300,000 together with his or her spouse) must make a special suitability determination for
the purchaser and must receive the purchaser’s written consent to the transaction prior to sale, unless the broker-dealer or the
transaction is otherwise exempt. In addition, the “penny stock” regulations require the U.S. broker-dealer to deliver, prior
to any transaction involving a “penny stock”, a disclosure schedule prepared in accordance with SEC standards relating to
the “penny stock” market, unless the broker-dealer or the transaction is otherwise exempt. A U.S. broker-dealer is also required
to disclose commissions payable to the U.S. broker-dealer and the registered representative and current quotations for the securities.
Finally, a U.S. broker-dealer is required to submit monthly statements disclosing recent price information with respect to the “penny
stock” held in a customer’s account and information with respect to the limited market in “penny stocks”.
Stockholders should be aware that, according
to the SEC, the market for “penny stocks” has suffered in recent years from patterns of fraud and abuse. Such patterns include
(i) control of the market for the security by one or a few broker-dealers that are often related to the promoter or issuer; (ii) manipulation
of prices through prearranged matching of purchases and sales and false and misleading press releases; (iii) “boiler room”
practices involving high-pressure sales tactics and unrealistic price projections by inexperienced sales persons; (iv) excessive
and undisclosed bid-ask differentials and markups by selling broker-dealers; and (v) the wholesale dumping of the same securities
by promoters and broker-dealers after prices have been manipulated to a desired level, resulting in investor losses. Our management is
aware of the abuses that have occurred historically in the penny stock market. Although we do not expect to be in a position to dictate
the behavior of the market or of broker-dealers who participate in the market, management will strive within the confines of practical
limitations to prevent the described patterns from being established with respect to our securities.
The market price for our Common Stock is
particularly volatile given our 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 our share price. You may be unable to sell your shares of Common Stock at or above the public
offering price of the shares of Common Stock, which may result in substantial losses to you.
The market for our Common Stock is characterized
by significant price volatility when compared to the shares of larger, more established companies that have large public floats, and
we expect that our share price will continue to be more volatile than the shares of such larger, more established companies for the indefinite
future, although such fluctuations may not reflect a material change to our financial condition or operations during any such period.
Such volatility can be attributable to a number of factors. For example, from January 1, 2022 through December 31, 2022 the
reported sale price of our Common Stock has fluctuated between $9.02 and $148.00 per share. From January 1, 2023 through December 31,
2023, the reported closing price of our Common Stock has fluctuated between $0.12 and $16.50 per share. First, as noted above, our Common
Stock is, compared to the shares of such larger, more established companies, sporadically and thinly traded. The price for our Common
Stock could, for example, decline precipitously in the event that a large number of our shares are sold on the market without commensurate
demand. Secondly, we are a speculative or “risky” investment due to our lack of profits to date. As a consequence of this
enhanced risk, more risk-adverse investors may, under the fear of losing all or most of their investment in the event of negative news
or lack of progress, be more inclined to sell their shares on the market more quickly and at greater discounts than would be the case
with the stock of a larger, more established company that has a large public float. Many of these factors are beyond our control and
may decrease the market price of our Common Stock regardless of our operating performance.
In addition to being highly volatile, our Common
Stock could be subject to wide fluctuations in response to a number of factors that are beyond our control, including, but not limited
to:
|
· |
variations in our revenues
and operating expenses; |
|
· |
actual or anticipated
changes in the estimates of our operating results or changes in stock market analyst recommendations regarding our Common Stock,
other comparable companies or our industry generally; |
|
· |
market conditions in our
industry, the industries of our customers and the economy as a whole; |
|
· |
actual or expected changes
in our growth rates or our competitors’ growth rates; |
|
· |
developments in the financial
markets and worldwide or regional economies; |
|
· |
announcements of innovations
or new products or services by us or our competitors; |
|
· |
announcements by the government
relating to regulations that govern our industry; |
|
|
|
|
· |
sales of our Common Stock
or other securities by us or in the open market; |
|
|
|
|
· |
changes in the market valuations
of other comparable companies; and |
|
|
|
|
· |
other events or factors, many of which
are beyond our control, including those resulting from such events, or the prospect of such events, including war, terrorism
and other international conflicts, public health issues including health epidemics or pandemics, and natural disasters such as
fire, hurricanes, earthquakes, tornados or other adverse weather and climate conditions, whether occurring in the United States
or elsewhere, could disrupt our operations, disrupt the operations of our suppliers or result in political or economic instability |
In addition, if the market for technology stocks
or the stock market in general experiences loss of investor confidence, the trading price of our Common Stock could decline for reasons
unrelated to our business, financial condition or operating results. The trading price of our Common Stock could also decline in reaction
to events that affect other companies in our industry, even if these events do not directly affect us. Each of these factors, among others,
could harm the value of your Shares. In the past, following periods of volatility in the market, securities class-action litigation has
often been instituted against companies. Such litigation, if instituted against us, could result in substantial costs and diversion of
management’s attention and resources, which could materially and adversely affect our business, operating results and financial
condition.
Purchasers who
purchase our securities in this offering pursuant to a securities purchase agreement may have rights not available to purchasers that
purchase without the benefit of a securities purchase agreement.
In addition to rights
and remedies available to all purchasers in this offering under federal securities and state law, the purchasers that enter into a securities
purchase agreement will also be able to bring claims of breach of contract against us. The ability to pursue a claim for breach of contract
provides those investors with the means to enforce the covenants uniquely available to them under the securities purchase agreement.
We do not intend to pay dividends on shares of our Common Stock
for the foreseeable future.
We have never declared or paid any cash dividends
on shares of our Common Stock and do not intend to pay any cash dividends in the foreseeable future. We anticipate that we will retain
all of our future earnings for use in the development of our business and for general corporate purposes. Any determination to pay dividends
in the future will be at the discretion of our Board. Accordingly, investors must rely on sales of their Common Stock after price appreciation,
which may never occur, as the only way to realize any future gains on their investments.
We may issue “blank check”
preferred stock without stockholder approval with the effect of diluting current stockholder interests and impairing their voting rights;
and provisions in our charter documents could discourage a takeover that stockholders may consider favorable.
Our Certificate of Incorporation authorizes the
issuance of “blank check” preferred stock with designations, rights and preferences as may be determined from time to time
by our Board. Our Board is empowered, without stockholder approval, to issue a series of preferred stock with dividend, liquidation,
conversion, voting or other rights which could dilute the interest of, or impair the voting power of, our common stockholders. The issuance
of a series of preferred stock could be used as a method of discouraging, delaying or preventing a change in control. For example, it
would be possible for our Board to issue preferred stock with voting or other rights or preferences that could impede the success of
any attempt to change control of our Company.
The Series B Preferred Stock has a
liquidation preference over our Common Stock.
The Series B Preferred Stock has a liquidation
preference that gets paid prior to any payment on our Common Stock. As a result, if we were to liquidate, dissolve or wind-up, each holder
of our Series B Preferred Stock would have the right to receive payment out of our assets available for distribution, before any
amount is paid to the holders of our Common Stock, in an amount equal in cash to 100% of the stated value of all shares of Series B
Preferred Stock held by such holder, plus any other fees then due and owing thereon, and no more, and if the assets of the Company shall
be insufficient to pay in full such amounts, then the entire assets to be distributed to the holders of Series B Preferred Stock
shall be ratably distributed among the Holders in accordance with the respective amounts that would be payable on such shares if all
amounts payable thereon were paid in full. Dividends on the Series B Preferred Stock will be paid in kind in additional shares of
Series B Preferred Stock based on the stated value of $100.00 per share at the dividend rate of 20%. The PIK dividends will be a
one time payment payable to the holders of the Series B Preferred Stock of record at the close of business on October 17, 2024.
The payment of the liquidation preferences on the Series B Preferred Stock could result in holders of our Common Stock not receiving
any proceeds if we were to liquidate, dissolve or wind up, either voluntarily or involuntarily.
The existence of the liquidation preferences
may reduce the value of our Common Stock, make it harder for us to sell shares of Common Stock in offerings in the future, or prevent
or delay a change of control.
If securities or industry analysts do not
publish research or reports about our business, or publish negative reports about our business, our Common Stock price and trading volume
could decline.
The trading market for our Common Stock may depend
in part on the research and reports that securities or industry analysts may publish about us or our business, our market and our competitors.
We do not have any control over such analysts. If one or more such analysts downgrade or publish a negative opinion of our Common Stock,
the Common Stock price would likely decline. If analysts do not cover us or our Company do not regularly publish reports on us, we may
not be able to attain visibility in the financial markets, which could have a negative impact on our Common Stock price or trading volume.
You may experience immediate and substantial
dilution in the pro forma net tangible book value per share of the Common Stock included as part of the Units sold in this offering or
that may be issued upon the exercise of any Pre-Funded Warrants included as parts of the Pre-Funded Units sold in this offering.
The price per share of our Common Stock being
offered as part of the Units or that may be issued upon the exercise of any Pre-Funded Warrants included as part of the Pre-Funded Units
is higher than the pro forma net tangible book value per share of our Common Stock. Therefore, you will suffer immediate and substantial
dilution in the pro forma net tangible book value of the Common Stock if you purchase securities in this offering. Furthermore, if outstanding
warrants are exercised, or the Warrants issued in connection with this offering are exercised, you could experience further dilution.
See the section entitled “Dilution” below for a more detailed discussion of the dilution you will incur if you invest in
this offering.
You may experience future dilution as a
result of future equity offerings and other issuances of our Common Stock or other securities. In addition, this offering and future
equity offerings and other issuances of our Common Stock or other securities may adversely affect our Common Stock price.
In order to raise additional capital, we may
in the future offer additional shares of our Common Stock or other securities convertible into or exchangeable for our Common Stock at
prices that may not be the same as the price per Unit or Pre-Funded Unit in this offering. We may not be able to sell shares or other
securities in any other offering at a price per share that is equal to or greater than the price per Unit or Pre-Funded Unit paid by
the investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing
stockholders. The price per share at which we sell additional shares of our Common Stock or securities convertible into Common Stock
in future transactions may be higher or lower than the price per Unit or Pre-Funded Unit in this offering. You may incur dilution upon
exercise of any outstanding warrants or upon the issuance of shares of Common Stock under our equity incentive programs. In addition,
the sale of securities in this offering and any future sales of a substantial number of shares of our Common Stock in the public market,
or the perception that such sales may occur, could adversely affect the price of our Common Stock. We cannot predict the effect, if any,
that market sales of those shares of Common Stock or the availability of those shares for sale will have on the market price of our Common
Stock.
General Risk Factors
Economic uncertainties or downturns, or
political changes, in the United States and globally, could limit the availability of funds available to our customers and potential
customers, which could materially adversely affect our business.
Our results of operations could be adversely
affected by general conditions in the economy and financial markets, both in the U.S. and globally, including conditions that are outside
of our control, such as the continuing uncertainty regarding the duration and scope of the COVID-19 pandemic, global supply chain disruptions,
the recent inflation in the United States and the foreign and domestic government sanctions imposed on Russia as a result of its recent
invasion of Ukraine. There continues to be volatility and disruptions in the capital and credit markets, and a severe or prolonged economic
downturn, including, but not limited to as a result of such events, could result in a variety of risks to our business, including weakened
demand for our products and our ability to raise additional capital when needed on acceptable terms, if at all. A weak or declining economy
could strain our suppliers, possibly resulting in supply disruption, or cause delays in payments for our services. In turn, we may be
required to increase our allowance for doubtful accounts, which would adversely affect our financial results. Any of the foregoing could
harm our business and we cannot anticipate all the ways in which the current economic climate and financial market conditions could adversely
impact our business.
Changes in government trade policies, including
the imposition of tariffs and export restrictions, could have an adverse impact on our business operations and sales.
The United States or foreign governments may
enact changes in government trade policies that could adversely impact our ability to sell products in certain countries, particularly
in China. For example, the U.S. government has imposed tariffs on certain Chinese imports and, in return, the Chinese government has
imposed or proposed tariffs on certain U.S. products. Additionally, export restrictions imposed by the U.S. government, including the
addition of licensing requirements by the United States Department of Commerce’s Bureau of Industry and Security (“BIS”)
through the addition of companies to the BIS Entity List, may require us to suspend our business with certain international customers
if we conclude or are notified by the U.S. government that such business presents a risk of noncompliance with U.S. regulations. We cannot
predict what actions may ultimately be taken with respect to tariffs or trade relations between certain countries, what products may
be subject to such actions, or what actions may be taken by other countries in response. It also may not be possible to anticipate the
timing or duration of such tariffs, export restrictions, or other regulatory actions. These government trade policies may materially
adversely affect our sales and operations with current customers as well as impede our ability to develop relationships with new customers.
There is a risk of further escalation and retaliatory
actions between the U.S. and other foreign governments. If significant tariffs or other restrictions are placed on goods exported from
China or any related counter-measures are taken, our revenue and results of operations may be materially harmed. These tariffs may also
make our customers’ products more expensive for consumers, which may reduce consumer demand.
There is also a risk that the U.S. government
may seek to implement more protective trade measures, not just with respect to China but with respect to other countries as well, such
as those imposed on Russia in connection with its recent invasion of Ukraine. This could include new or higher tariffs and even more
restrictive trade barriers, such as prohibiting certain types of, or all sales of certain products or products sold by certain parties
into the U.S. Any increased trade barriers or restrictions on global trade could have a materially adverse impact on our business and
financial results.
A decline in discretionary consumer spending
may adversely affect our industry, our operations and ultimately our profitability.
Luxury products, such as speaker systems, TVs,
game consoles and PCs, are discretionary purchases for consumers. Any reduction in consumer discretionary spending or disposable income
may affect our industry significantly. Many economic factors outside of our control could affect consumer discretionary spending, including
the financial markets, consumer credit availability, prevailing interest rates, energy costs, employment levels, salary levels, and tax
rates. Any reduction in discretionary consumer spending could materially adversely affect our business and financial condition.
Consumer spending weakness could impact our revenue.
Weakness in general economic conditions may suppress
consumer demand in our markets. Many of the products in which our technologies are incorporated are discretionary goods, such as home-theater
systems. Weakness in general economic conditions may also lead to customers becoming delinquent on their obligations to us or being unable
to pay, resulting in a higher level of write-offs. Economic conditions may impact the amount businesses spend on their speaker systems.
Weakness in economic conditions could lessen demand for our products and negatively affect our revenue.
If we are unable to attract, integrate
and retain additional qualified personnel, including top technical talent, our business could be adversely affected.
Our future success depends in part on our ability
to identify, attract, integrate and retain highly skilled technical, managerial, sales and other personnel. We face intense competition
for qualified individuals from numerous other companies, including other software and technology companies, many of whom have greater
financial and other resources than we do. Some of these characteristics may be more appealing to high-quality candidates than those we
have to offer. In addition, new hires often require significant training and, in many cases, take significant time before they achieve
full productivity. We may incur significant costs to attract and retain qualified personnel, including significant expenditures related
to salaries and benefits and compensation expenses related to equity awards, and we may lose new employees to our competitors or other
companies before we realize the benefit of our investment in recruiting and training them. Moreover, new employees may not be or become
as productive as we expect, as we may face challenges in adequately or appropriately integrating them into our workforce and culture.
If we are unable to attract, integrate and retain suitably qualified individuals who are capable of meeting our growing technical, operational
and managerial requirements, on a timely basis or at all, our business will be adversely affected.
Volatility or lack of positive performance in
our share price may also affect our ability to attract and retain our key employees. Many of our senior management personnel and other
key employees have become, or will soon become, vested in a substantial amount of shares of Common Stock, RSUs or warrants to purchase
Common Stock. Employees may be more likely to leave us if the shares they own or the shares underlying their vested units or warrants
have significantly appreciated in value relative to the original grant prices of the shares or units or the exercise prices of the warrants,
or, conversely, if the exercise prices of the warrants that they hold are significantly above the market price of our Common Stock. If
we are unable to appropriately incentivize and retain our employees through equity compensation, or if we need to increase our compensation
expenses in order to appropriately incentivize and retain our employees, our business, operating results and financial condition would
be adversely affected.
We may be subject to litigation for a variety
of claims, which could adversely affect our results of operations, harm our reputation or otherwise negatively impact our business.
We may be subject to litigation for a variety
of claims arising from our normal business activities. These may include claims, suits, and proceedings involving labor and employment,
wage and hour, commercial and other matters. The outcome of any litigation, regardless of its merits, is inherently uncertain. Any claims
and lawsuits, and the disposition of such claims and lawsuits, could be time-consuming and expensive to resolve, divert management attention
and resources, and lead to attempts on the part of other parties to pursue similar claims. Any adverse determination related to litigation
could adversely affect our results of operations, harm our reputation or otherwise negatively impact our business. In addition, depending
on the nature and timing of any such dispute, a resolution of a legal matter could materially affect our future operating results, our
cash flows or both.
The requirements of being a U.S. public company may strain our
resources and divert management’s attention.
As a U.S. public company, we are subject to the
reporting requirements of the Exchange Act, the Sarbanes-Oxley Act, the Dodd-Frank Act, the listing requirements of Nasdaq,
and other applicable securities rules and regulations.
Compliance with these rules and regulations
increases our legal and financial compliance costs, makes some activities more difficult, time-consuming, or costly, and increases demand
on our systems and resources. The Exchange Act requires, among other things, that we file annual and current reports with respect
to our business and operating results.
As a result of disclosure of information in this
prospectus and the registration statement of which this prospectus forms a part, as well as in filings required of a public company,
our business and financial condition is more visible, which we believe may result in threatened or actual litigation, including by competitors
and other third parties. If such claims are successful, our business and operating results could be harmed, and even if the claims do
not result in litigation or are resolved in our favor, these claims, and the time and resources necessary to resolve them, could divert
resources of our management and harm our business and operating results.
CAUTIONARY
STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains various forward-looking
statements within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act, which represent our
expectations or beliefs concerning future events. Forward-looking statements include statements that are predictive in nature, which
depend upon or refer to future events or conditions, and/or which include words such as “believes,” “plans,”
“intends,” “anticipates,” “estimates,” “expects,” “may,” “will”
or similar expressions. In addition, any statements concerning future financial performance, ongoing strategies or prospects, and possible
future actions, which may be provided by our management, are also forward-looking statements. Forward-looking statements are based on
current expectations and projections about future events and are subject to risks, uncertainties, and assumptions about our company,
economic and market factors, and the industry in which we do business, among other things. These statements are not guarantees of future
performance, and we undertake no obligation to publicly update any forward-looking statements, whether as a result of new information,
future events, or otherwise, except as required by law. Actual events and results may differ materially from those expressed or forecasted
in forward-looking statements due to a number of factors. Factors that could cause our actual performance, future results and actions
to differ materially from any forward-looking statements include, but are not limited to, those discussed under the headings “Prospectus
Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
and “Business” in this prospectus and in any of our filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act. The forward-looking statements in this prospectus represent our views as of the date such statements are made. These
forward-looking statements should not be relied upon as representing our views as of any date subsequent to the date such statements
are made.
USE
OF PROCEEDS
We estimate that the net proceeds from
this offering will be approximately $9.0 million (assuming the sale of all securities offered hereby, at the assumed public
offering price of $0.10 per Unit, the closing sale price of our Common Stock on Nasdaq on January 29, 2024, and assuming no sale of
any Pre-Funded Units and no exercise of the Warrants issued in connection with this offering), after deducting the placement agent
fees and estimated offering expenses payable by us. However, because this is a best-efforts offering and there is no minimum
offering amount required as a condition to the closing of this offering, the actual offering amount, the placement agent’s
fees and net proceeds to us are not presently determinable and may be substantially less than the maximum amounts set forth on the
cover page of this prospectus.
A $0.03 increase (decrease) in the assumed
public offering price of $0.10 per Unit would increase (decrease) the net proceeds to us from this offering by approximately $2.8 million,
using the same assumptions set forth above.
Similarly, a 100,000 increase (decrease) in
the number of Units offered by us, as set forth on the cover page of this prospectus, would increase (decrease) the net proceeds
to us by approximately $9,000, using the same assumptions set forth above.
We intend to use the proceeds of this offering
for repurchase of 62,657 shares of outstanding Series B Preferred Stock at $100 per share and other working capital and general corporate
purposes.
The precise amount and timing of the application
of such net proceeds will depend upon our funding requirements and the availability and cost of other funds. Our Board and management
will have considerable discretion in the application of the net proceeds from this offering, and it is possible that we may allocate
the proceeds differently than investors in the offering may desire or that we may fail to maximize the return on these proceeds. You
will be relying on the judgment of our management with regard to the use of proceeds from this offering, and you will not have the opportunity,
as part of your investment decision, to assess whether the proceeds are being used appropriately.
DILUTION
If you invest in the securities being offered
by this prospectus, your interest will be diluted immediately to the extent of the difference between the public offering price per Unit
and the pro forma net tangible book value per share of our Common Stock after this offering.
Our historical net tangible book value as of September 30,
2023 was $885,000, or $0.13 per share of our Common Stock. Historical net tangible book value per share represents the amount
of our total tangible assets, less total liabilities, divided by the number of shares of our Common Stock outstanding as of September 30,
2023.
Our pro forma net tangible book value was $5,095,000, or $0.15 per
share of our Common Stock. Pro forma net tangible book value represents the amount of our total tangible assets less our total liabilities,
after giving effect to (i) the Series B Preferred Stock Offering (including the Warrant Repurchase), (ii) the Warrant Inducement Transaction,
(iii) the repayment in full of the Meriwether Loan (as defined below), (iv) the net issuance of 184,699 shares of Common Stock under the
Company’s equity incentive plans (the “Restricted Stock Activity”), (v) the Conversion, (vi) the 2024 Bridge Private
Placement, (vii) the repayment in full of the 2024 Bridge Promissory Notes and (viii) the exercise of 32,600 Series B Preferred Stock
Warrants.
After giving effect to (i) the sale
of 100,000,000 Units at the assumed public offering price of $0.10 per Unit (the closing sale price of our Common Stock on Nasdaq
on January 29, 2024, and assuming no sale of any Pre-Funded Units and no exercise of the Warrants issued in connection with this offering),
after deducting the placement agent fees and estimated offering expenses payable by us and (ii) the Series B Repurchase and Cancellation
Transaction, our pro forma as adjusted net tangible book value as of September 30, 2023 would have
been approximately $7,869,000 or approximately $0.06 per share. This represents an immediate decrease in net tangible book value of approximately
$0.09 per share to our existing stockholders and an immediate dilution of approximately $0.04 per share to purchasers of our securities
in this offering, as illustrated by the following table:
Assumed public offering price
per Unit |
|
$ |
0.10 |
|
Pro
forma net tangible book value per share, as of September 30, 2023, before giving effect to this offering |
|
$ |
0.15 |
|
Decrease
in pro forma net tangible book value (deficit) per share attributable to new investors in this offering |
|
$ |
0.09 |
|
Pro forma as adjusted net tangible book value per
share, after this offering |
|
$ |
0.06 |
|
Dilution to pro forma as adjusted net tangible book
value per share to investors in this offering |
|
$ |
0.04 |
|
The dilution information discussed above is illustrative only and will
change based on the actual public offering price and other terms of this offering determined at pricing. A $0.03 increase or decrease
in the assumed public offering price of $0.10 per Unit (and $0.10 per Pre-Funded Unit) would increase or decrease the pro forma, as adjusted
net tangible book value per share by approximately $2.8 million, and increase or decrease the pro forma, as adjusted net tangible book
value per share to investors participating in this offering by approximately $0.02 per share, assuming the number of Units (and Pre-Funded
Units) offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting the placement agent fee
and estimated offering expenses payable by us.
To the extent that our outstanding warrants are
exercised, you could experience further dilution. To the extent that we raise additional capital through the sale of additional equity,
the issuance of any of our shares of Common Stock could result in further dilution to our stockholders.
MANAGEMENT’S DISCUSSION
AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion together
with our financial statements and the related notes included elsewhere in this prospectus. This discussion contains forward-looking statements
that are based on our current expectations, estimates and projections about our business and operations. Our actual results may differ
materially from those currently anticipated and expressed in such forward-looking statements as a result of a number of factors, including
those which we discuss under “Risk Factors” and elsewhere in this prospectus. See “Cautionary Statement Regarding Forward-Looking
Statements.”
Overview
We are an emerging technology company and our
primary business focus is to enable mainstream consumers and audio enthusiasts to experience high quality wireless audio. We intend to
continue selling our proprietary wireless modules to consumer electronics companies while also expanding our focus to implement a lower
cost solution by porting our IP software onto commercially available internet of things (or IoT), modules with integrated Wi-Fi technology.
Our technology addresses some of the main issues
that we perceive are hindering the growth of the home theater: complexity of installation and cost. We believe that consumers want to
experience theater quality surround sound from the comfort of their homes. However, wired home theater systems often require expensive
audio-visual (or AV), receivers to decode the audio stream, leaving the consumer with the burden of concealing the wires. Hiring a professional
to hide the wires into the walls or floor is invasive, complicated, costly and time consuming. Further, people who rent as opposed to
own may not be able to install these systems as the installation construction needed may not be permitted under a lease agreement. Our
first-generation wireless technology addresses these problems by transmitting wireless audio to each speaker at Blu-ray quality (uncompressed
24-bit audio up to 96 kHz sample rates) and emphasizing ease of setup. To our knowledge, our custom chips and modules technology is one
of the few technologies available today that can stream up to eight (8) separate wireless audio channels with low latency, removing
lip-sync issues between the audio and video sources. In addition, every speaker within a system that utilizes our technology can be synchronized
to less than one microsecond, thus eliminating phase distortion between speakers. Our first-generation technology shows that wireless
home theater systems are viable home audio solutions for the average consumer and audio enthusiast alike.
Current research and development investments
focus on developing Wi-Fi compatible IP software for transmitting multichannel wireless audio for which patent applications have been
submitted. A software solution enables smart devices that have Wi-Fi and video media to deliver surround sound audio and allows us to
port our wireless audio technology to popular Wi-Fi based modules and systems on a chip (or SOC), that is currently in production. The
Company’s “Discovery” module first announced in January 2021 is the first IoT module solution with our embedded
wireless audio software that specifically targets the high growth Dolby ATMOS soundbar market with a low-cost transceiver. The Discovery
module is capable of supporting ATMOS configurations up to 5.1.4. requiring five separate wireless audio channels. Our goal is to continue
to commercialize and improve performance of a software based-solution, which other brands can integrate into their devices, that will
(i) reduce integration costs for mass market use, (ii) utilize Wi-Fi for wireless connectivity, making it easy to integrate
into today’s high volume, low cost SOC and modules, (iii) provide a low power consumption option to allow for use in battery
powered devices, and (iv) provide compatibility with popular consumer electronic operating systems.
To date, our operations have been funded through
sales of our common and preferred equity, proceeds from the exercise of warrants, sale of debt instruments, and revenue from the sale
of our products. Our condensed consolidated financial statements contemplate the continuation of our business as a going concern. However,
we are subject to the risks and uncertainties associated with an emerging business, as noted above we have no established source of capital,
and we have incurred recurring losses from operations since inception.
To date, travel restrictions and border closures
have not materially impacted our ability to obtain inventory or manufacture or deliver products or services to customers. However, if
such restrictions become more severe, they could negatively impact those activities in a way that would harm our business over the long
term. Travel restrictions impacting people can restrain our ability to assist our customers and distributors as well as impact our ability
to develop new distribution channels, but at present we do not expect these restrictions on personal travel to be material to our business
operations or financial results.
Critical Accounting Estimates
The following discussion
and analysis of financial condition and results of operations is based upon our consolidated financial statements, which have been prepared
in conformity with accounting principles generally accepted in the United States of America. Certain accounting policies and estimates
are particularly important to the understanding of our financial position and results of operations and require the application of significant
judgment by our management or can be materially affected by changes from period to period in economic factors or conditions that are
outside of our control. As a result, they are subject to an inherent degree of uncertainty. In applying these policies, our management
uses their judgment to determine the appropriate assumptions to be used in the determination of certain estimates. Those estimates are
based on our historical operations, our future business plans and projected financial results, our observance of trends in the industry
and information available from other outside sources, as appropriate.
Comparison of
the Three and Nine Months Ended September 30, 2023 and 2022
Revenue
Revenue for the three months ended September 30,
2023 was $769,000, a decrease of $168,000 or 18%, compared to the revenue for the three months ended September 30, 2022 of $937,000.
The decrease in overall sales is primarily related to a slow-down in consumer spending on consumer electronics which resulted in lower
Component revenue of $437,000 offset partially by higher Consumer Audio Product revenue of $269,000, when compared to the three months
ended September 30, 2022.
Revenue for the nine months ended September 30,
2023 was $1,663,000, a decrease of $786,000 or 32%, compared to the revenue for the nine months ended September 30, 2022 of $2,449,000.
The decrease in overall sales is primarily related to a slow-down in consumer spending on consumer electronics which resulted in lower
Component revenue of $870,000 offset slightly by higher Consumer Audio Product revenue of $84,000, when compared to the nine months ended
September 30, 2022.
Gross Profit and
Operating Expenses
Gross Profit (Deficit)
Gross deficit for the three months ended September 30,
2023 was ($1,669,000) a decrease of $1,799,000, compared to $130,000 gross profit for the three months ended September 30, 2022.
The gross margin (deficit) as a percent of sales was (217%) for the three months ended September 30, 2023, compared to 14% for the
three months ended September 30, 2022. The decrease in gross profit and gross margin as a percent of sales is mainly attributable
to a $1.4 million increase in inventory reserves primarily attributable to our semiconductor chips, lower sales volumes in relation to
the fixed portion of costs and lower pricing of our Consumer Audio Products.
Gross deficit for the nine months ended September 30,
2023 was ($3,123,000), a decrease of $3,503,000 compared to $380,000 gross profit for the nine months ended September 30, 2022.
The gross margin (deficit) as a percent of sales was (188%) for the nine months ended September 30, 2023, compared to 16% for the
nine months ended September 30, 2022. The decrease in gross profit and gross margin as a percent of sales is mainly attributable
to a $2.8 million increase in inventory reserves primarily attributable to our semiconductor chips, lower sales volumes in relation to
the fixed portion of costs and lower pricing of our Consumer Audio Products.
Research and Development
Research and development expenses for the three
months ended September 30, 2023 were $1,838,000, a decrease of $101,000, compared to the research and development expenses for the
three months ended September 30, 2022 of $1,939,000. The decrease in research and development expenses is primarily related to decreased
salary and benefit expenses of $71,000 and consulting expenses, which includes outside engineering expenses of $52,000.
Research and development expenses for the nine
months ended September 30, 2023 were $5,664,000, an increase of $305,000 compared to the research and development expenses for the
nine months ended September 30, 2022 of $5,359,000. The increase in research and development expenses is primarily related to increased
consulting expenses, which includes outside engineering and direct materials used in research and development of $292,000 and $48,000,
respectively, partially offset by reduced recruiting fees of $128,000.
Sales and Marketing
Sales and marketing expenses for the three months
ended September 30, 2023 were $1,404,000, a decrease of $135,000, compared to the sales and marketing expenses for the three months
ended September 30, 2022 of $1,539,000. The decrease in sales and marketing expenses is primarily related to lower website development
and advertising fees of $96,000 and $61,000, respectively, partially offset by increased consulting fees of $31,000.
Sales and marketing expenses for the nine months
ended September 30, 2023 were $3,787,000 a decrease of $378,000, compared to the sales and marketing expenses for the nine months
ended September 30, 2022 of $4,165,000. The decrease in sales and marketing expenses is primarily related to lower advertising expenses
and website expenses of $191,000 and $160,000, respectively.
General and Administrative
General and administrative expenses for the three
months ended September 30, 2023 were $1,428,000, an increase of $28,000, compared to the general and administrative expenses for
the three months ended September 30, 2022 of $1,400,000. The increase in general and administrative expenses is primarily related
to increased investor relations expenses of $173,000, offset partially by reduced legal fees of $107,000.
General and administrative expenses for the nine
months ended September 30, 2023 were $4,260,000, an increase of $652,000, compared to the general and administrative expenses for
the nine months ended September 30, 2022 of $3,608,000. The increase in general and administrative expenses is primarily related
to increased investor relations expenses, accounting fees and legal fees of $465,000, $100,000 and $61,000, respectively.
Interest Expense,
net
Interest expense, net for the three and nine
months ended September 30, 2023 was $52,000 and $812,000, respectively. Interest expense, net for the three and nine months ended
September 30, 2022 was $173,000 and $174,000, respectively.
Interest expense for the three months ended September 30,
2023 was primarily due to the amortization of debt discounts associated with the short-term loan that the Company issued in September 2023.
Interest expense for the nine months ended September 30, 2023 was primarily due to the amortization of debt discounts associated
with the senior secured convertible note that the Company issued in August 2022 and repaid in full on April 11, 2023.
Interest expense for the three and nine months
ended September 30, 2022 was primarily due to the amortization of debt discounts associated with the convertible debt that the Company
issued in August 2022.
Change in Fair Value
of Warrant Liabilities
Change in fair value
of warrant liabilities for the three months ended September 30, 2023 was $284,000, compared to $274,000 for the three months ended
September 30, 2022. The change in fair value of the warrant liabilities for the three months ended September 30, 2023 was primarily
due to the decrease in the price of our common stock at September 30, 2023 compared to the price of our common stock on the date
of the warrant issuance as well as the decline in our common stock price from June 30, 2023, related to existing warrant liabilities.
Change in fair value
of warrant liabilities for the nine months ended September 30, 2023 was $6,134,000, compared to $274,000 for the nine months ended
September 30, 2022. The change in fair value of the warrant liabilities for the nine months ended September 30, 2023 was due
to the issuance of warrants in February 2023 and the subsequent decrease in the price of our common stock at September 30,
2023 compared to the price of our common stock on the date of the warrant issuance as well as the decline in our common stock price from
December 31, 2022, related to existing warrant liabilities.
Loss on Debt Extinguishment
During the three and nine months ended September 30,
2023, the Company recorded a loss on debt extinguishment of $0 and $837,000. The loss is directly related to the Company’s April 2023
repayment of the Convertible Note in the amount of $1,656,744. The repayment of the entirety of the outstanding balance of such note,
included the unpaid principal, interest through the payoff date, and a pre-payment premium of $276,000. The loss also includes the expensing
of the related unamortized debt discounts totaling $894,000, offset partially by a $333,000 gain on termination of a derivative liability
that was established in connection with the Convertible Note.
Comparison of the Years Ended December 31,
2022 and 2021
Revenue
Revenue for the year ended December 31,
2022 was $3,365,000, a decrease of $3,176,000, or 49%, compared to the revenue of $6,541,000 for the year ended December 31, 2021.
The decrease was a result of lower Component revenue which decreased by $3,189,000, compared to the year ended December 31, 2021,
offset partially by Consumer Audio Product sales which increased by $13,000, compared to the year ended December 31, 2021. The decrease
in Component revenue was due in part to (i) a slow-down in consumer spending on consumer electronics which resulted in excess end
product inventory at retailers and (ii) supply chain interruptions experienced by certain of our customers as a result of COVID-19,
with their delaying orders to us until other components for their products could be obtained.
Gross Profit and Operating Expenses
Gross Profit
Gross profit for the year ended December 31,
2022 was $395,000 a decrease of $1,469,000 compared to $1,864,000 gross profit for the year ended December 31. 2021. The decrease
in gross profit is mainly attributable to low volumes of Component sales. The gross margin as a percent of sales was 11.7% for the year
ended December 31, 2022 compared to 28.5% for the year ended December 31, 2021, a decrease of 16.8 points. The decrease in
gross margin as a percent of sales was due in part to (i) reduced sales volumes in comparison to the fixed portion of costs included
in our manufacturing and (ii) the Company’s fourth quarter 2022 price reductions of its consumer audio products in response
to the slowdown in consumer spending on consumer electronics.
Research and Development
Research and development expenses for the year
ended December 31, 2022 were $7,144,000, an increase of $1,908,000, compared to expenses of $5,236,000 for the year ended December 31,
2021. The increase in research and development expenses is primarily related to increased salary and benefit expense of $874,000, increased
stock-based compensation, professional and consulting expense and recruiting fees of $106,000, $783,000 and $95,000, respectively.
Sales and Marketing
Sales and marketing expenses for the year ended
December 31, 2022 were $6,140,000, an increase of $2,017,000, compared to expenses of $4,123,000 for the year ended December 31,
2021. The increase in sales and marketing expenses is primarily related increased salary and benefit expenses of $336,000, increased
stock-based compensation, professional and consulting expenses, advertising and public relation expenses and tradeshow expenses of $286,000,
$283,000, $808,000, $69,000, respectively.
General and Administrative
General and administrative expenses for the year
ended December 31, 2022 were $5,155,000, an increase of $1,139,000, compared to expenses of $4,016,000 for the year ended December 31,
2021. The increase in general and administrative expenses is primarily related to increased stock-based compensation, professional and
consulting expenses and board fees of $227,000, $653,000 and $85,000, respectively.
Interest Expense, net
Interest expense, net for the year ended
December 31, 2022 was $898,000, compared to $9,000 for the year ended December 31, 2021. The increase of $889,000 in interest
expense, net for the year ended December 31, 2022, was primarily due to the amortization of debt discounts associated with the senior
secured convertible note in the principal amount of $3,600,000 (the “Convertible Note”) that the Company incurred in August 2022.
Minimal interest expense, net for the year ended December 31, 2021, was primarily related to interest accrued on the Paycheck Protection
Loan which was forgiven in the third quarter of 2021.
Change in Fair Value of Warrant Liability
Change in fair value of warrant liability for
the year ended December 31, 2022 was approximately $2,852,000, compared to $0 for the year ended December 31, 2021. The change
in fair value of the warrant liability for the year ended December 31, 2022 was due to the issuance of warrants during December 2022
associated with our stock offering and the subsequent decrease in our common stock price at year end compared to the price of our stock
on the date of the warrant issuance.
Change in Fair Value of Derivative Liability
Change in fair value of derivative liability
for the year ended December 31, 2022 was approximately $47,000, compared to $0 for the year ended December 31, 2021. The change
in fair value of the derivative liability for the year ended December 31, 2022 was due to the decrease in our common stock price.
Gain on Forgiveness of Paycheck Protection Program Loan
We recorded a gain of $859,000 due to the forgiveness
of the Paycheck Protection Loan for the year ended December 31, 2021. No such forgiveness occurred during the year ended December 31,
2022.
Warrant Inducement Expense
Warrant inducement expense was $1,146,000 for
the year ended December 31, 2021. Such warrant inducement expense represents the fair value of warrants issued to warrant holders
in connection with a solicitation of such warrant holders to exercise their outstanding warrants during the year ended December 31,
2021. No such inducement expense occurred during the year ended December 31, 2022.
Deemed Dividend on Exchange of Convertible Preferred Stock for
Common Stock
During the year ended December 31, 2021,
the Company recorded a deemed dividend of $1,192,000 in connection with the exchange of all 250,000 shares of preferred stock for 250,000
shares of common stock and warrants to purchase up to 187,500 shares of common stock, which warrants were subsequently fully exercised
on a cashless basis for 79,244 shares of common stock. No such deemed dividend occurred the year ended December 31, 2022.
Liquidity and Capital Resources
Cash and cash equivalents as of September 30,
2023 were $212,000 compared to $2,897,000 as of December 31, 2022.
We incurred a net loss of $12,358,000 for the
nine months ended September 30, 2023 and used net cash in operating activities of $12,101,000. We incurred a net loss of $12,661,000
for the nine months ended September 30, 2022 and used net cash in operating activities of $12,896,000. Excluding non-cash adjustments,
the primary reasons for the decrease in the use of net cash from operating activities during the nine months ended September 30,
2023, was related to a decrease in inventories, partially offset by an increase in accounts receivable and prepaid expenses and a decrease
in accrued liabilities.
We have financed our operations to date primarily
through the issuance of equity securities, proceeds from the exercise of warrants common stock and sale of debt instruments. In August 2022,
we received net proceeds of $2.5 million from the issuance of a convertible promissory note to an investor. In December 2022, we
received net proceeds of $6.4 million, from the issuance of 540,000 shares of common stock (includes the exercise of 36,000 pre-funded
warrants) and the issuance of 1,080,000 warrants to purchase common stock. In February 2023, we received net proceeds of approximately
$5.3 million from the issuance of 583,306 shares of common stock (includes the exercise of 381,762 pre-funded warrants) and the issuance
of 874,959 warrants to purchase common stock. In March 2023, we received net proceeds of approximately $1.6 million from the issuance
of 837,207 shares of common stock and the issuance of 1,674,414 warrants to purchase common stock. In April 2023, we received net
proceeds of approximately $1.0 million through the issuance of common stock and warrants. In May 2023, we received net proceeds
of approximately $1.9 million in connection with a warrant inducement. In July 2023, we received net proceeds of approximately $0.6
million in connection with a warrant inducement. In September 2023, we secured a term loan in the principal amount of $650,000 from
a related party. In October 2023, we received gross proceeds of approximately $4.8 million, prior to underwriting discounts, commissions,
and offering expenses, from the issuance of 87,000 shares of preferred stock and the issuance of 174,000 warrants to purchase preferred
stock. In December 2023, we received gross proceeds of approximately $2.1 million in connection with the Warrant Inducement Transaction.
We will need to raise additional proceeds via the issuance of equity securities and/or the sale of debt instruments in the first quarter
of 2024 to fund operations for the second, third and fourth quarters of fiscal year 2024.
Going Concern
The Company has incurred net operating losses
each year since inception. As of September 30, 2023, the Company had cash and cash equivalents of $0.2 million and reported
net cash used in operations of $12.1 million during the nine months ended September 30, 2023. The Company expects operating
losses to continue in the foreseeable future because of additional costs and expenses related to research and development activities,
plans to expand its product portfolio, and increase its market share. The Company’s ability to attain profitable operations is
dependent upon achieving a level of revenues adequate to support its cost structure.
Based on current operating levels, the Company
will need to raise additional funds by selling additional equity or incurring debt. To date, the Company has funded its operations primarily
through issuance of equity securities and proceeds from the exercise of warrants to purchase common stock and the sale of debt instruments.
Additionally, future capital requirements will depend on many factors, including the rate of revenue growth, the selling price of the
Company’s products, the expansion of sales and marketing activities, the timing and extent of spending on research and development
efforts and the continuing market acceptance of the Company’s products. These factors raise substantial doubt about the Company’s
ability to continue as a going concern for the twelve months from the date of this prospectus.
Management of the Company intends to raise additional
funds through the issuance of equity securities or debt. There can be no assurance that, in the event the Company requires additional
financing, such financing will be available at terms acceptable to the Company, if at all. Failure to generate sufficient cash flows
from operations, raise additional capital and reduce discretionary spending could have a material adverse effect on the Company’s
ability to achieve its intended business objectives. As a result, the substantial doubt about the Company’s ability to continue
as a going concern has not been alleviated. The accompanying condensed consolidated financial statements do not include any adjustments
that might be necessary if the Company is unable to continue as a going concern.
Off-Balance Sheet Arrangements
We have no off-balance sheet arrangements.
BUSINESS
Overview
We believe that the
future of audio technology is in wireless devices and that WiSA is well positioned to deliver best-in-class immersive wireless sound
technology for intelligent devices and next generation home entertainment systems. Historically we have sold modules which wirelessly
transmit and receive audio directly to speakers. In late 2023, we launched a new wireless technology, WiSA E, that is software based
and works with standard Wi-Fi chips. Additionally, we plan to license our proprietary software technology, currently embedded in our
wireless modules, to other companies who can then embed our technology into other Wi-Fi enabled smart devices. The segment of the wireless
audio market that WiSA focuses on is comprised of scalable multichannel solutions with levels of latency that are low enough to synchronize
with video. The term multichannel refers to the use of multiple audio tracks to reconstruct a sound field using multiple speakers.
As part of the effort
to grow the wireless multichannel home audio segment, WiSA Technologies, Inc. was a founding member of the WiSA Association, an association
dedicated to providing industry leadership and consumer choice through interoperability testing between brands. Products certified and
marked with a WiSA Association logo have been tested to inter operate. This preserves consumer choice by enabling consumers to choose
different wireless transmitting products across different brands where audio is decoded with speakers that have the WiSA Association logo
displayed. Our marketing strategy focuses on, what we believe, are two emerging wireless audio market needs: immersive, multi-channel
audio and robust wireless performance. WiSA sold custom semiconductor chips and wireless modules to premium audio brans in the consumer
electronics industry. We believe that a growing adoption of our technology by leaders in this industry will revolutionize the way people
experience media content through their mobile and handheld devices, televisions (“TVs”),soundbars (“SBs”), set-top-boxes/streaming
devises and personal computers (“PCs”).
Our Business Focus
Our primary business
focus is to enable mainstream consumers and audio enthusiasts to experience high quality wireless immersive audio. We intend to continue
selling our proprietary wireless modules to consumer electronics companies while also expanding our focus to implement a lower-cost solution
by porting our software onto commercially available internet of things (“IoT”) modules with integrated Wi-Fi technology.
Industry Background
The primary growth segments
for in-home entertainment have been “Bluetooth” stereo accessories which include single speakers, headsets, and more recently,
“multi-room” stereo speakers that use your home’s Wi-Fi network to stream audio throughout house. Another market that
continues to grow is the sound bar market. Sound bars are typically sold with wireless subwoofers and may also be sold with wireless
rear speakers.
Our Technology
Our fundamental technology
addresses some of the main issues that we perceive hinder the growth of immersive audio in the home: complexity of setup, cost, interoperability
between smart devices and the speakers, and robust wireless performance. We believe that consumers want to experience theater-quality
immersive sound from the comfort of their homes. However, traditional immersive audio systems, commonly referred to as home theater surround
sound systems, are wired and often require expensive audio-visual (“AV”) receivers to decode the audio stream, leaving the
consumer with the burden of concealing the wires. Hiring a professional to hide the wires into the walls or floor is invasive, complicated,
costly, and time consuming. Our first-generation wireless technology addresses these problems by transmitting wireless audio to each speaker
at Blu-ray quality (uncompressed 24 bit audio up to 96 kHz sample rates) and emphasizing ease of setup. Our next generation technology,
WiSA E, is software IP designed for (i) easy implementation for the manufacturing brand to design with, (ii) broad flexibility to accommodate
various price points and business models, and (iii) maintaining high quality wireless performance for the consumer.
Having
successfully developed wireless audio solutions for the high-end of the immersive audio market, WiSA is continuing its development
of proprietary software (WiSA E) targeted at bringing its best-of-class immersive audio technology to entry/mid-level audio systems.
Noting the growth of the sound bar market, WiSA plans a low-cost, entry-level wireless audio solution designed to meet the needs of
the consumer looking for a sound bar-based, value-driven immersive audio system. To address this market segment, WiSA is currently
developing certain proprietary software for which patent applications have been submitted that will enable sound bars as well as
smart devices that have Wi-Fi and video media to deliver immersive audio. First development kits for WiSA E began to ship during
late Q3 2023 (pursuant to confidentiality agreements). Our goal is to commercialize a software based -solution, which other brands
can integrate into their devices, that will (i) reduce integration costs for mass market use, (ii) utilize Wi-Fi for wireless
connectivity, making it easy to integrate into today’s high volume, low cost systems on a chip (“SOC”) and
modules, (iii) provide a low power consumption option to allow for use in battery-powered devices, and (iv) provide
compatibility with popular consumer electronic operating systems.
WiSA Association
Our wholly-owned subsidiary,
WiSA, LLC, operates the WiSA Association, which is an association of brands, manufacturers, and influencers within the consumer electronics
industry, with the purpose of promoting a standardized method of interoperability between wireless audio components using WiSA’s
technology. The WiSA Association creates, maintains and manages specifications for wireless interoperability that are available to all
WiSA Association members. For products with a WiSA Association certification, the WiSA Association also creates, maintains, and manages
testing criteria and specifications for all products to be listed, marketed and sold. WiSA-certification is an industry-wide “stamp
of approval” certifying that a product is interoperable with other products in the WiSA ecosystem and has passed several high-performance
tests ensuring interoperability and wireless performance standards are met. As the sole owner of WiSA, LLC, we certify all WiSA Association
products.
WiSA, LLC is also the
IP licensing organization for WiSA E interoperable transmission from smart devices to audio devices. In Q4, 2023, WiSA, LLC announced
a licensing program for display devices (TVs and projectors). In the first 90 days three manufacturers have signed licenses.
Currently, WiSA-certified
products are required to use WiSA modules in order to meet the standards set by the WiSA Association. As a result, WiSA Association members
purchase modules from us in order to build their products to meet such standards.
Among WiSA-certified
products, consumers will be able to outfit their home entertainment system with WiSA-certified speakers and components from any participating
vendor with the assurance that the devices will interoperate and provide high quality wireless HD surround sound.
The WiSA Association
manages logo usage and trademark guidelines, investigates alternative markets, connects brands to manufacturing resources, and, we believe,
provides industry leadership in solving the challenges facing the home theater and commercial markets in the integration of wireless
audio technology.
Modules
WiSA has designed wireless
modules that provide high performance wireless audio for our customers to integrate into their products, such as a speakers, TVs, soundbars,
set-top-boxes, and HDMI dongles. These modules can be designed using our custom semiconductors with our IP built in, as well as a Wi-Fi
radio for communications or with our WiSA E software loaded onto a third party IoT Wi-Fi chip. By designing and selling these modules,
we believe that we can reduce our customers’ design expense, accelerate their time-to-market cycle, and reduce the cost of each
module. The consumer’s smart devises must have interoperable WiSA modules compatible with the WiSA transmit technology. Speakers,
with the matching “RX” model, receive the wireless audio signal and processes it for audio play out.
The WiSA Opportunity
We believe that the
following attributes: cost, mobility, video support, ease of installation and quality create a market opportunity for WiSA’s technologies
to be adopted by the consumer electronics industry as described further below.
Cost
We believe that the simplicity
and cost structure of both our original technology and our embedded software solution will make our prices competitive for a wider range
of applications in their respective markets, allowing consumer electronics companies to integrate our technology, while also delivering
high quality audio.
Video Support
Wireless audio capable
of supporting video has become a priority for consumers across a variety of high-volume multimedia platforms, including TV’s, smartphones,
game consoles and set-top boxes. Video applications require audio and video to be perfectly synchronized in order to avoid lip-sync and
speaker audio phase distortion issues. WiSA’s technology prioritizes wireless robustness, latency and speaker synchronization to
create an entertaining experience.
Ease of Installation
We believe that
the home entertainment market has moved toward simplicity in recent years. The costly and inconvenient home theaters of the past
have left consumers with a desire for audio systems that provide a simplified installation process. We believe that as the TVs adopt
broad use of Dolby Atmos and Dolby Atmos Music, which delivers the immersive audio decoding, new audio systems, including the
predominant sound bar system, will need to provide a higher level of performance, especially in the surround-sound market.
WiSA’s technology greatly simplifies the installation process of true surround-sound systems. This allows consumers to install
an immersive audio system with the same amount of effort as a sound bar, but enjoy a far superior experience. We believe that an
overwhelming majority of the content entering consumers’ homes through digital TV and streaming services is provided in a
multi-channel format, which is why WiSA’s goal is to facilitate enjoyment of true surround sound for both the everyday
consumer and audio enthusiast.
In addition to easy installation,
WiSA’s technology provides consumers with a multitude of options, allowing customization of the immersive audio experience individualized
to each consumer, without being forced to stick with one brand of speaker. For example, our hope is that a consumer might start with a
WiSA enabled sound bar for their TV and then add a WiSA enabled subwoofer. That same system can be easily upgraded to a variety of surround
sound systems by simply adding more speakers. Our technology will allow consumers to upgrade an audio system or just one component of
the system without the need to replace the entire system. Consumers can keep the original transmitter, sound bar, and subwoofer and integrate
them seamlessly into a new system. Being able to outfit a home entertainment system with WiSA-enabled speakers and components gives consumers
the ability to express their individual preference and needs and provides the assurance that the devices will interoperate, delivering
what we believe is the highest standard in HD wireless surround sound.
Dissatisfaction with
Bluetooth Performance and Quality
We believe that consumers
want better performance and quality from their Bluetooth audio devices. For example, they may want headsets that stay connected over
longer distances or products that offer better audio fidelity. By offering a solution that addresses these needs at a comparable price
point to Bluetooth, we believe that we can build consumer demand for our technology.
Enjoyment of improved
audio on existing content
We believe that the
growth in the number of video devices streaming multi-channel audio content, coupled with new 3D immersive sound experiences from Dolby’s
Atmos and DTS’ DTS:X formats, will help propel the demand for wireless speakers well into the future.
Enjoyment of wireless
audio without interference from other wireless signals
Having other devices
nearby that also use the 5 GHz band should not affect the performance of a WiSA-enabled audio system, as WiSA’s technology can
seamlessly switch to another frequency within the 5 GHz band. The 5 GHz U-NII spectrum utilized by WiSA technology has up to 24 channels
available that are constantly monitored for interference using the Dynamic Frequency Selection sub-band between 5.2 and 5.8 GHz. When
interference is detected, the next channel, having been monitored for over one minute and confirmed for accessibility, is ready to be
accessed and WiSA-enabled devices switch seamlessly to that channel, without the user ever noticing or the audio experience being affected.
What Distinguishes
WiSA from its Competitors
Both the proprietary
technology and the adoption of the technology by leaders in consumer electronics are differentiating factors for WiSA. Our management
believes that WiSA is one of the only companies with the technical capabilities of transmitting high resolution, low latency, and speaker
synchronization of wireless audio capable of supporting up to eight channels. Premium consumer brands, like Bang & Olufsen,
Harman International, a division of Samsung, and LG Electronics have begun to adopt our technology as a valued feature in performance
products.
Category Defining
Wireless Audio
Our first generation
wireless audio technology delivers industry leading eight channels of uncompressed audio directly to the speakers in 24 bit and up to
96 kHz sample rates. This means that a consumer can experience audio exactly as it was mastered in the studio. WiSA's technology supports
surround sound systems up to 7.1 or 5.1.2 for Dolby Atmos® configurations.
Alternative technologies
such as, Bluetooth and Wi-Fi standards were not designed to transmit fixed low latency audio that is synchronized to video. However,
Bluetooth and Wi-Fi standards can work well for audio-only wireless transmission, when video is not a part of the listening experience.
In audio-only applications, latency is less critical and audio data can be buffered in memory to ensure proper speaker synchronization
even when data retransmissions are needed in today’s congested wireless environments. In video applications, retransmissions add
to latency. Standard Bluetooth and Wi-Fi standards have long variable latency that can exceed acceptable audio to video synchronization
and make quality multichannel audio experience unachievable. A few custom silicon-based solutions exist today that improve on Bluetooth
and Wi-Fi standards based performance, but compared to WiSA, such products have longer latencies, lower performing speaker synchronization,
and are limited to 2-4 audio channels and often only support 16 bit CD quality audio.
WiSA’s technology
roadmap includes proprietary software that will enable standard Wi-Fi protocol to support multi-channel audio for video applications,
while permitting WiSA to leverage Wi-Fi’s lower chip and module cost structure. WiSA’s first generation technology was designed
for the mid to high end home theater market and offers a unique feature set that is expected to be included in new product designs for
years. WiSA’s new Wi-Fi strategy enables the Company to compete in the entry-level home theater market at Bluetooth price points,
while delivering superior multi-channel performance for higher volume applications. The Company’s recently announced Discovery
module is the first product that integrates WiSA’s new software which enables a transceiver module to keep up to four independent
wireless audio channels synchronized in a room size up to 10 meters square. The Discovery modules is ideally suited for entry level home
entertainment systems, including sound bars, TVs, subwoofers and Dolby Atmos® applications.
WiSA Customers
WiSA currently sells
wireless modules containing custom semiconductor chips to a growing list of consumer electronics customers, including major brands such
as Bang & Olufsen, KEF, LG, Harman International, a division of Samsung, Savant, Skyworth and System Audio. We believe that
the use of our products by well-known consumer electronics brands will provide an opportunity to create wireless audio products that
are simple to install and perform at high levels. Brands such as Bang & Olufsen and Harman have chosen WiSA technology to drive
their wireless home audio/theater product assortments. We believe that their leadership has brought credibility to the technology and
paved the way at retail for other brands to follow.
Our Strategy
Our goal is to establish
and maintain a leadership position as the ubiquitous standard for hi-fidelity wireless, multichannel audio. To obtain and enhance our
position as the leading standard in the audio space, we intend to:
| · | improve
recognition of our WiSA Certification brand and the WiSA standard brand; |
| · | provide
excellent products and services to our customers and members; |
| · | make
sure our technology is accessible to many consumers by having our technology in consumer
electronics devices that sell at a variety of price points; |
| · | expand
market awareness of wireless multi-channel hi-fidelity audio experience availability; |
| · | enhance
and protect our IP portfolio; |
| · | invest
in highly qualified personnel; and |
| · | build
innovative products alongside the world’s leading consumer electronics companies. |
We currently sell
our modules in relatively small quantities. As we introduce WiSA E technology to customers, with its lower price points and great flexibility
for designs, we expect that orders for our modules will increase. With larger orders, we believe that we can take advantage of economies
of scale and improve gross margins on our modules.
Interoperability
Interoperability is
a key aspect of wireless technology. We believe that this is especially true with audio technology, where unique designs, price points,
audio quality and capabilities as well as consumer brand loyalties are significant factors for the end consumer. Creating home theater
and audio components that all work with an interoperable standard creates a high level of confidence in retailers and consumers in the
functionality of the entire entertainment system. Interoperability also increases the opportunity for specialized brands to create new
and innovative products knowing they can focus on their specific part of the market and rely on others to create the necessary cohort
components.
Proprietary Software
A significant amount
of our time and resources are being allocated towards launching a software licensing part of our business under the WiSA E brand. Customers
will receive a license for our TX software, so that any of their devices with a suitable Wi-Fi radio can transmit audio compliant with
our standard without having to purchase and integrate our TX module. We believe that this software will be well positioned for use by
major consumer electronics companies in many devices including TVs, handsets, gaming consoles, and computers. Patent applications have
been submitted for key technology innovations in this software.
Research and Development
As of February 2,
2024, our research and development department consisted of 30 dedicated employees. WiSA’s engineering team has a wide range of
expertise, capable of developing all levels of product design, from Application Specific Integrated Circuits (“ASIC”) to
modules to finished products. WiSA research and development has and will continue developing trade secrets for Digital Signal Processing
(“DSP”), RF design and testing of WiSA technologies.
WiSA has developed multiple
ASICs and certified modules for integration into multiple wireless audio designs by ODMs which are currently shipping to consumers. The
ASIC hardware solution uses a high-performance proprietary network protocol for transmission of multi-channel audio.
WiSA is also currently
shipping and developing modules that are Wi-Fi compatible. The Software (“SW”) solution enables multi-channel audio capabilities
on off the shelf IoT modules running RTOS and future Linux/Android based multimedia systems. The software solution uses a Wi-Fi network
for transmission of multi-channel audio. WiSA released to production a low cost 2.4GHz IoT module supporting (5) audio channels and
in the process of porting our software to a 5GHz IoT module in 2024. We have engaged an Indian design center to focus on Android integration
of the core SW for embedded TV applications.
Manufacturing, Logistics
and Fulfillment
Our modules are designed
and developed in Oregon, and our manufacturing is outsourced to contract manufacturers located in China. Our manufacturing facilities
have been ISO 9001 and ISO 14001 certified. We purchase components and fabricated parts from multiple suppliers; however, we rely on
sole source suppliers for certain components used to manufacture our modules. Several key strategic parts are purchased from suppliers
by us and then consigned to our manufacturers, while the vast majority of parts are procured directly by our contract manufacturers.
Our operations team manages the pricing and supply of the key components of our modules and seeks to achieve competitive pricing on the
largest value-add components, while leveraging our contract manufacturers’ volume purchases for best pricing on common parts. We
have strong relationships with our manufacturers, helping us meet our supply and support requirements. Our manufacturing partners procure
components and assemble our devices in accordance with our purchase orders. Demand forecasts and manufacturing purchase orders are based
upon customer orders, historical trends, and analysis from our sales and product management functions. We believe that our manufacturing
capabilities are essential to maintaining and improving product quality and performance, and that using outsourced manufacturing enables
greater scale and flexibility than establishing our own manufacturing facilities.
While some modules are
delivered from our production facility in Oregon, we have a third-party warehouse and fulfillment center in Hong Kong that delivers the
majority our modules.
Sales Channels and
Customers
WiSA sells modules and
integrated circuits (“ICs”) directly to OEM brands worldwide which in turn, sell their system level products to end customers
through a vast channel of retailers and dealer networks. Internationally known brands such as Bang & Olufsen, Harman International,
a division of Samsung, LG, System Audio, KEF, and many others are among our current customers, with products aimed at the wireless home
theater market. Most of these brands sell through retailers store fronts and online e-tail.
Marketing and Advertising
Effective and consistent
marketing and advertising is critical as we grow our wireless audio solutions. We have worked with multiple PR agencies on establishing
effective messaging to face all segments within our category including press, brands, reviewers, retailers and consumers. Our focuses
are ease of set-up, high quality performance, expandability and the benefits of a true multi-channel surround sound audio solutions.
Competition
The semiconductor industry
is intensely competitive and has been characterized by price erosion and rapid technological change. We compete with major domestic and
international semiconductor companies, many of which have greater market recognition and greater financial, technical, marketing, distribution
and other resources than we have with which to pursue engineering, manufacturing, marketing and distribution of their products. Competitive
products include products that: (a) are resistant to interference, low latency, long-range, and able to stream uncompressed audio;
(b) target applications in the PC accessory audio, iPod accessory audio, home theater, and consumer & enterprise voice markets;
(c) enable smart TVs, computers and mobile devices to connect to their multiple peripherals wirelessly, and simultaneously from a single
host, with the ability to mix-and-match peripherals; and (d) utilize Bluetooth technology as a means of transmission.
We believe that our
technology competes favorably with our competitors for a variety of reasons, including, among others:
| · | Our
technology transmits audio packets with fixed latency in a manner well-suited for multi-channel
audio networks and video applications. |
| · | Our
technology contains WiFi compatible software which provides the following future key benefits: |
| o | WiFi
is not inherently proficient for transporting low latency audio. WiSA has spent the last
5 years developing a protocol that can leverage off the shelf high volume low cost 2.4GHz
and 5GHz IoT chips and modules and scale to higher audio channel counts. As chip technology
performance improves so will our performance. |
| o | WiFi
compatibility allows us to operate more efficiently in congested environments while delivering
the performance the market demands. |
| o | A
software solution will allow WiSA Technologies to pivot into new markets quicker than those
making custom proprietary chip solutions. |
There are many other
factors that impact our ability to be competitive and may impact our success against both larger and emerging competitors.
Intellectual Property
We have key IP
assets, including patents and trade secrets developed based on our technical expertise. As of February 2, we
had 13 issued and 10 pending U.S. patents covering our technology. Our currently issued patents expire at various times from
September 25, 2027 through March 1, 2040.
IP is an important aspect
of our business, and our practice is to seek protection for our IP as appropriate. A multi-channel audio for surround sound system has
technical requirements not required by simple stereo only systems. Multi-channel systems require each audio channel to be precisely played
in time to create a sound field that correlates to video being viewed by a consumer. WiSA has developed hardware and software core technologies
that manage system network latency and speaker phase. WiSA’s patents are based on protecting our low latency network algorithms
and multi receiver synchronization.
We pursue a general
practice of filing patent applications for our technologies in the U.S. and occasionally in foreign countries where our customers manufacture,
distribute, or sell licensed products. We actively pursue new applications to expand our patent portfolio to address new technological
innovations. We have multiple patents covering aspects and improvements for many of our technologies.
Our trademarks cover
our various products, technologies, improvements, and features, as well as the services that we provide. These trademarks are an integral
part of our technology licensing program, and licensees typically elect to place our trademarks on their products to inform consumers
that their products incorporate our technology and meet our quality specifications.
We protect our IP rights
both domestically and internationally. From time to time, we may experience problems with OEMs of consumer entertainment products in
emerging economies. In the event it becomes necessary, we will take all necessary steps to enforce our IP rights.
Moreover, we have relatively
no issued patents outside the U.S. Growing our licensing revenue in developing countries may dep end in part on our ability to obtain
and maintain patent rights in these countries, which is uncertain. Further, because of the limitations of the legal systems in many countries,
the effectiveness of patents obtained or that may in the future be obtained, if any, is uncertain.
Employees
As of February 2,
2024, we had a total 46 employees working in the United States and internationally, 40 of which work full time. In the United States,
we had 43 employees, including 30 employees that work in our research and development department, 8 employees in our sales and marketing
department, 1 employee that works in our manufacturing/logistics/fulfillment department and 5 employees that work in our general and
administrative department. Additionally, we have one logistics employee in China, one sales employee in Taiwan and one sales employee
in Korea. None of our employees are currently covered by a collective bargaining agreement, and we have experienced no work stoppages.
We consider our relationship with our employees to be good.
Our Corporate Information
We were formed as a
limited liability company in Delaware on July 23, 2010. We converted to a Delaware corporation, effective December 31, 2017.
Effective as of March 11, 2022, the Company changed its name to “WiSA Technologies, Inc.” The address of our corporate
headquarters is 15268 NW Greenbrier Pkwy, Beaverton, OR 97006. Our website address is www.wisatechnologies.com. The information contained
in or accessible through our website is not part of this prospectus and is intended for informational purposes only.
MANAGEMENT
Executive Officers, Directors and Director Nominees
The following table sets forth the names and
ages, as of the date of this prospectus, and titles of the individuals who will serve as our executive officers and members of our Board
at the time of the offering.
Name | |
Position | |
Age | |
Brett Moyer | |
President, Chief Executive Officer and Chairman
of the Board | |
| 65 | |
Gary Williams | |
Chief Accounting Officer and VP of Finance | |
| 57 | |
Lisa Cummins | |
Director (1)(3) | |
| 54 | |
Dr. Jeffrey M. Gilbert | |
Director (2)(3) | |
| 52 | |
David Howitt | |
Director | |
| 55 | |
Helge Kristensen | |
Director | |
| 63 | |
Sriram Peruvemba | |
Director (1)(2) | |
| 58 | |
Robert Tobias | |
Director (2)(3) | |
| 59 | |
Wendy Wilson | |
Director (1) | |
| 56 | |
(1) Member of the audit committee.
(2) Member of the compensation committee.
(3) Member of the nominating and corporate governance committee.
The following is a summary of the biographical information about our
officers and directors.
Brett
Moyer, Chief Executive Officer, President and Director and Chairman. Brett Moyer is a founding member of the Company and
has served as the President and Chief Executive Officer of the Company and as a member of its Board since August 2010. From August 2002
to July 2010, Mr. Moyer served as president and chief executive officer of Focus Enhancements, Inc., a developer and marketer
of proprietary video technology and UWB wireless chips. From February 1986 to May 1997, Mr. Moyer worked at Zenith Electronics
Inc. a consumer electronic company, where he had most recently been the vice president and general manager of its Commercial Products
Division. Between August 2017 and October 2019, Mr. Moyer served as a member of the board of directors of DionyMed Brands
Inc., a company which operated a multi-state, vertically integrated operating platform that designs, develops, markets and sold a portfolio
of branded cannabis products. From June 2016 to November 2018, Mr. Moyer served as a member of the board of directors
of Alliant International University, a private university offering graduate study in psychology, education, business management, law
and forensic studies, and bachelor’s degree programs in several fields. From 2003 to December 2015, he served as a member
of the board of directors of HotChalk, Inc., a developer of software for the educational market, and from March 2007 to September 2008,
he was a member of the board of directors of NeoMagic Corporation, a developer of semiconductor chips and software that enable multimedia
applications for handheld devices. Mr. Moyer received a Bachelor of Arts in Economics from Beloit College in Wisconsin and a Master’s
of Business Administration with a concentration in finance and accounting from Thunderbird School of Global Management. The Company believes
that Mr. Moyer is qualified to serve on the Board because of his extensive experience as an executive with technology and electronic
companies.
Gary
Williams, Chief Accounting Officer and Vice President of Finance. Gary Williams has served
as Chief Accounting Officer since September 9, 2019 and as Vice President of Finance since the Company’s founding in August 2010.
Mr. Williams previously served as Secretary and Chief Financial Officer since the Company’s founding in August 2010 until
September 9, 2019. In addition, Mr. Williams served as the Chief Financial Officer of Quantum3D, Inc., a training and
simulation technology company, from November 2012 to September 2016. Prior to joining the Company, Mr. Williams served
as secretary, vice president of finance and chief financial officer of Focus Enhancements Inc., a developer and marketer of proprietary
video technology, from January 2001 to July 2010, when the videography and semiconductor businesses of the company were purchased
by VITEC Multimedia, Inc. and the Company, respectively. Mr. Williams served as controller, vice president of finance, chief
financial officer and secretary of Videonics Inc., a publicly traded company in the consumer electronics business, from February 1995
to January 2001, when Videonics merged with Focus Enhancements, Inc. From July 1994 to January 1995, Mr. Williams
served as controller for Western Micro Technology, a publicly traded company in the electronics distribution business. From January 1990
to June 1994, Mr. Williams worked in public accounting for Coopers & Lybrand LLP. Mr. Williams is a certified
public accountant, inactive, and received a Bachelor’s Degree in Business Administration, with an emphasis in Accounting, from
San Diego State University.
Lisa
Cummins. Lisa Cummins has been a member of the Board since June 2019. Ms. Cummins
currently serves as Chief Financial Officer for Ayar Labs, a venture backed startup that is developing an optical based “chiplet”
to provide high speed, high density & low power to replace traditional electrical based input/output. She joined Ayar Labs in
January 2019 after overseeing a successful sale of Penguin Computing, a private equity
backed company, to Smart Global Holdings in June 2018. Prior to that, from May 2007 to October 2012, she served as Chief
Financial Officer at Adept Technology, a Nasdaq publicly traded global robotics company, where she oversaw investor relations, led the
Sarbanes-Oxley Act of 2002, as amended, compliance, completed multiple acquisitions, and secured bank and equity financing including
a secondary public offering. Ms. Cummins is a certified public accountant, inactive, earned a Business Economics degree from the
University of California Santa Barbara and a Masters in Business Administration from St. Mary’s College. The Company believes that
Ms. Cummins is qualified to serve on the Board because of her over 25 years of experience as a growth-oriented financial executive
in global high- tech organizations.
Dr. Jeffrey
M. Gilbert. Dr. Gilbert has been a member of the Board since April 2015. Dr. Gilbert
has been working in the Research and Machine Intelligence and Project Loon teams at Google, Inc. since March 2014, and from
January 2014 to March 2014, Dr. Gilbert worked for Transformational Technology Insights LLC, a consulting company, where
he served as the sole principal. Previously, from May 2011 to December 2013, Dr. Gilbert
was chief technology officer of Silicon Image, Inc., a leading provider of wired and wireless connectivity solutions. Dr. Gilbert
was responsible for Silicon Image Inc.’s technology vision, advanced technology, and standards initiatives. Prior to joining Silicon
Image Inc., Dr. Gilbert was chief technical officer of SiBEAM Inc., a fabless semiconductor company pioneering the development of
intelligent millimeter wave silicon solutions for wireless communications, from May 2005 to May 2011. Before SiBEAM Inc., Dr. Gilbert
served as director of algorithms and architecture and other engineering and management positions at Atheros Communications, a semiconductor
developer, from May 2000 to May 2005, where he led the development of that company’s 802.11n, 802.11g, eXtended Range
(“XR”), and Smart Antenna technologies. Dr. Gilbert received a Ph.D. in Electrical Engineering from the University of
California Berkeley, an M.Phil. in Computer Speech and Language Processing from Cambridge University, and a B.A. in Computer Science
from Harvard College. The Company believes that Dr. Gilbert is qualified to serve on the Board to advise the Company on technology
developments and management based on his long-standing experience in the wireless and technology industries.
David
Howitt. David Howitt has been a member of the Board since December 2021. Since March 2004, Mr. Howitt has
served as the founder and CEO of Meriwether Group LLC, a strategic consulting firm that works with disruptive consumer brands by integrating
their visions, developing growth strategies, scaling their brands, and increasing revenue in order to build enterprise value. Prior to
founding Meriwether Group LLC, between 1997 to 2008 Mr. Howitt worked in various positions at Adidas US, including managing Licensing
and Business Development and as corporate counsel from 1997 to 2001. Mr. Howitt serves as Member Of The Board Of Advisors, Bloch
International. Mr. Howitt earned his bachelor’s degree, political science/philosophy at Denison University and his JD, environmental
and natural resources law at Lewis & Clark Law School. The Company believes that Mr. Howitt is qualified to serve on the
Board because of his experience as a growth-oriented leader in a multitude of organizations.
Helge
Kristensen. Helge Kristensen has been a member of the Board since August 2010. Mr. Kristensen has held high
level management positions in technology companies for the last 25 years and for the last 18 years, he has served as vice president of
Hansong Technology, an original device manufacturer of audio products based in China, and as president of Platin Gate Technology (Nanjing)
Co. Ltd, a company with focus on service- branding in lifestyle products as well as pro line products based in China. Since August 2015,
Mr. Kristensen has served as co-founder and director of Inizio Capital, an investment company based in the Cayman Islands. Mr. Kristensen
has been involved in the audio and technology industries for more than 25 years. His expertise is centered on understanding and applying
new and innovative technologies. He holds a master’s degree in Engineering and an HD-R, a graduate diploma, in Business Administration
(Financial and Management Accounting) from Alborg University in Denmark. The Company believes that Mr. Kristensen is qualified to
serve on the Board because of his technology and managerial experience as well has his knowledge of the audio industry.
Sriram
Peruvemba. Sriram Peruvemba has been a member of the Board since June 2020. He is the CEO of Marketer International
Inc., a marketing services firm, a position he has held since July 2014. Mr. Peruvemba currently serves on a number of additional
boards, including as a member of Visionect d.o.o since September 2017, as a member of Omniply Technologies since May 2020,
as a member of Edgehog Technologies since January 2023, as a member of SmartKem Inc. since July 2023, and as a member of Azumo
since July 2023. He previously served as board member and chair of marketing for the Society for Information Display from August 2014
to July 2020. Mr. Peruvemba was previously the Chief Marketing Officer at E Ink Holdings, where he played a major role in transforming
the startup to a global company with a valuation greater than $1 billion. With over 30 years of experience in the technology industry,
Mr. Peruvemba has been an influential advocate in the advancement of electronic hardware technologies. Based in Silicon Valley,
Mr. Peruvemba advises high tech firms in the US, Canada, and Europe. He received a bachelor’s degree in Engineering from Bangalore
University, an MBA degree from Wichita State University and a post-graduate diploma in management from Indira Gandhi National Open University.
The Company believes that Mr. Peruvemba is qualified to serve on the Board because of such experience and because he is an acknowledged
expert on electronic displays, haptics, touch screens, electronic materials and related technologies. He also consults, writes and presents
on those subjects globally.
Robert
Tobias. Robert Tobias has been a member of the Board since February 2020 and has served as CEO, Chairman and President
of HDMI Licensing Administrator Inc. since January 2017, where he has been the strategic force behind the licensing, enforcement,
compliance and growth of HDMI® technology around the world. Mr. Tobias leads efforts to promote the HDMI specification as the
premier digital and audio interface to the consumer electronics, mobile, PC and entertainment industries. In addition, he oversees IP
enforcement with 1700 HDMI licensees and partners responsible for the release of almost nine billion HDMI products worldwide, and as
such brings a recognized level of expertise working with foreign regulatory channels, customs authorities, standards development organizations,
media companies, etc., to grow the business and protect the HDMI brand. Prior to joining HDMI Licensing Administrator Inc., Mr. Tobias
served as President of HDMI Licensing LLC, a wholly owned subsidiary of Lattice Semiconductor, from September 2015 to December 2016,
where he led the marketing, licensing and compliance teams promoting and licensing the HDMI intellectual property, and prior to that,
he held the roles of President at MHL and Senior Director of Strategic Product Marketing and Business Development at Silicon Image. Mr. Tobias
earned a Bachelor’s degree in Electrical Engineering from UC Davis, an MBA from Santa Clara University and sits on the UC Davis
Engineering Faculty Dean’s Executive Committee. The Company believes that Mr. Tobias is qualified to serve on the Board based
on his experience and leadership in the consumer electronics industry as well as his strong relationships with top consumer electronics
brands in Asia.
Wendy
Wilson. Wendy Wilson has been a member of the Board since May 2021. Ms. Wilson previously served as Vice President
of Marketing at ChargePoint, Inc. from August 2017 to November 2023, a leading electric vehicle charging network provider,
where she had profit and loss responsibilities for the company’s home business unit, assisted with run go-to- market functions
for such company’s SaaS businesses and helped to expand operations into European markets with scalable localization, web, and marketing
processes. Previously, Ms. Wilson served as Vice President of Marketing at Jive Software, a communication software company, from
August 2014 to July 2017, where she led demand generation, field and web teams, and has held leadership roles in small venture
capital funded startups and publicly traded firms, including Yahoo! Inc. and The Walt Disney Company (“Disney”). In her leadership
role at Infoseek, which was acquired by Disney in 1998, she was responsible for cross- disciplinary teams from ESPN, Go.com (ABC News),
Mr. Showbiz and Infoseek brands. At Yahoo, she was responsible for both the monetization and editorial strategy for the Yahoo front
page, known then as the world’s homepage. Ms. Wilson is a graduate of Northwestern University with a bachelor’s degree
in English. The Company believes that Ms. Wilson is qualified to serve on the Board based on her expertise in digital marketing
and go-to-market strategies for companies with “business to consumer” and “business to business to consumer”
commerce models.
Family Relationships
There are no family relationships among any of
our directors or executive officers.
Involvement
in Certain Legal Proceedings
In 2015, Quantum3D, Inc.
(“Quantum3D”), a company of which Mr. Williams had been serving as chief financial officer, as a result of his prior
experience in corporate restructuring, was placed into an assignment for the benefit of creditors. Mr. Williams continued to serve
as chief financial officer during Quantum3D’s restructuring and negotiated sale in September 2016.
On October 29, 2019, DionyMed
Brands Inc., a British Columbia company which Mr. Moyer had been serving as a director, was placed in receivership and Mr. Moyer
resigned.
Other than the foregoing, to
the best of our knowledge, none of our directors or executive officers has, during the past ten (10) years:
| · | been
convicted in a criminal proceeding or been subject to a pending criminal proceeding (excluding
traffic violations and other minor offenses); |
| · | had
any bankruptcy petition filed by or against the business or property of the person, or of
any partnership, corporation or business association of which he was a general partner or
executive officer, either at the time of the bankruptcy filing or within two (2) years
prior to that time; |
| · | been
subject to any order, judgment, or decree, not subsequently reversed, suspended or vacated,
of any court of competent jurisdiction or federal or state authority, permanently or temporarily
enjoining, barring, suspending or otherwise limiting, his involvement in any type of business,
securities, futures, commodities, investment, banking, savings and loan, or insurance activities,
or his association with persons engaged in any such activity; |
| · | been
found by a court of competent jurisdiction in a civil action or by the SEC or the Commodity
Futures Trading Commission to have violated a federal or state securities or commodities
law, and the judgment has not been reversed, suspended, or vacated; |
| · | been
the subject of, or a party to, any federal or state judicial or administrative order, judgment,
decree, or finding, not subsequently reversed, suspended or vacated (not including any settlement
of a civil proceeding among private litigants), relating to an alleged violation of any federal
or state securities or commodities law or regulation, any law or regulation respecting financial
institutions or insurance companies including, but not limited to, a temporary or permanent
injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent
cease-and-desist order, or removal or prohibition order, or any law or regulation prohibiting
mail or wire fraud or fraud in connection with any business entity; or |
| · | been
the subject of, or a party to, any sanction or order, not subsequently reversed, suspended
or vacated, of any self -regulatory organization (as defined in Section 3(a)(26) of
the Exchange Act), any registered entity (as defined in Section 1(a)(29) of the Commodity
Exchange Act), or any equivalent exchange, association, entity or organization that has disciplinary
authority over its members or persons associated with a member. |
CORPORATE GOVERNANCE
Board of Directors
The Board oversees our business affairs and monitors
the performance of our management. In accordance with our corporate governance principles, the Board does not involve itself in day-to-day
operations. The directors keep themselves informed through discussions with the Chief Executive Officer, other key executives and by
reading the reports and other materials sent to them and by participating in Board and committee meetings. Our directors hold office
until the next Annual Meeting of Stockholders and until each of their respective successors are elected and qualified or until each of
their earlier resignation or removal, or if for some other reason they are unable to serve in the capacity of director.
Our Board currently consists of eight (8) members:
Brett Moyer, Lisa Cummins, David Howitt, Dr. Jeffrey M. Gilbert, Helge Kristensen, Sriram Peruvemba, Robert Tobias and Wendy Wilson.
All of our directors will serve until our next annual meeting of stockholders and until their successors are duly elected and qualified
or until their earlier resignation or removal.
Director
Independence
As our Common Stock is listed on the Nasdaq Capital
Market, our determination of the independence of directors is made using the definition of “independent director” contained
in Rule 5605(a)(2) of the Marketplace Rules of The Nasdaq Stock Market LLC. Our Board affirmatively determined that Dr. Jeffrey
M. Gilbert, Sriram Peruvemba, Lisa Cummins, Robert Tobias and Wendy Wilson are “independent directors,” as that term is defined
in the Marketplace Rules of The Nasdaq Stock Market LLC (the “Nasdaq Rules”). Under the corporate governance rules of
Nasdaq, our Board must be composed of a majority of “independent directors.” Additionally, subject to certain limited exceptions,
our audit, compensation, and nominating and corporate governance committees also must be composed of all independent directors.
The Nasdaq Rules require that each member
of a listed company’s audit, compensation and nominations committees be independent. Audit committee members must also satisfy
the independence criteria set forth in Rule 10A-3 under the Exchange Act. Under the Nasdaq Rules, a director will only qualify as
an “independent director” if, in the opinion of that company’s board of directors, that person does not have a relationship
that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director.
To be considered to be independent for purposes
of Rule 10A-3 of the Exchange Act, a member of an audit committee of a listed company may not, other than in such member’s
capacity as a member of such committee, such company’s board of directors, or any other committee of such board of directors: (1) accept,
directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries; or (2) be
an affiliated person of the listed company or any of its subsidiaries.
Our Board has undertaken a review of its composition,
the composition of its committees and the independence of each director. Based upon information requested from and provided by each director
concerning such director’s background, employment and affiliations, including family relationships, our Board has determined that
(a) the following members of our Board have a relationship that would interfere with the exercise of independent judgment in carrying
out the responsibilities of a director: Brett Moyer, Helge Kristensen and David Howitt, and (b) other than such directors, each
of our directors is “independent” as that term is defined under the Nasdaq Rules. In making this determination, our Board
considered the current and prior relationships that each non-employee director has with our Company and all other facts and circumstances
our Board deemed relevant in determining their independence, including the beneficial ownership of our shares of Common Stock by each
non-employee director. Our Board has determined that (i) Ms. Cummins, Mr. Peruvemba and Ms. Wilson satisfy the independence
standards for the Board’s audit committee established by the Nasdaq Rules and Rule 10A-3 of the Exchange Act, (ii) Mr. Peruvemba,
Dr. Gilbert and Mr. Tobias satisfy the independence standards for the Board’s compensation committee established by the
Nasdaq Rules and are “independent directors” for such committee’s purposes and (ii) Mr. Tobias, Dr. Gilbert
and Ms. Cummins satisfy the independence standards for the Board’s nominating and corporate governance committee established
by the Nasdaq Rules and are “independent directors” for such committee’s purposes.
Board Committees
Our Board has an audit committee,
a compensation committee and a nominating and corporate governance committee. Each Board committee has a charter, which is available
on our website at https://ir.wisatechnologies.com/corporate-governance/governance-documents. Information contained on our website
is not incorporated herein by reference. Each of the Board’s committees has the composition and responsibilities described below.
As of February 2, 2024, the members of such
committees are:
Audit Committee–Lisa Cummins*(1),
Sriram Peruvemba and Wendy Wilson
Compensation Committee–Sriram
Peruvemba*, Dr. Jeffrey M. Gilbert and Robert Tobias
Nominating and Corporate Governance
Committee–Robert Tobias*, Lisa Cummins and Dr. Jeffrey M. Gilbert.
* Indicates Committee Chair
(1) Indicates Audit Committee
Financial Expert
Audit Committee
Our Board’s
audit committee (the “Audit Committee”) has been established in accordance with Section 3(a)(58)(A) of the Exchange
Act. The members of our Audit Committee are Lisa Cummins, Sriram Peruvemba and Wendy Wilson, each of whom are “independent”
within the meaning of Rule 10A-3 under the Exchange Act and the Nasdaq rules. Our Board has determined that Ms. Cummins shall
serve as the “audit committee financial expert,” as such term is defined in Item 407(d)(5) of Regulation S-K. In addition,
Ms. Cummins serves as Chairperson of our Audit Committee.
The Audit
Committee oversees our corporate accounting and financial reporting process and oversees the audit of our financial statements and the
effectiveness of our internal control over financial reporting. The responsibilities of the Audit Committee
include, among other matters:
| · | selecting
a qualified firm to serve as the independent registered public accounting firm to audit our
consolidated financial statements; |
| · | helping
to ensure the independence and performance of the independent registered public accounting
firm; |
| · | discussing
the scope and results of the audit with the independent registered public accounting firm,
and reviewing, with management and the independent registered public accounting firm, our
interim and year-end operating results; |
| · | developing
procedures for employees to submit concerns anonymously about questionable accounting or
audit matters; |
| · | reviewing
our policies on risk assessment and risk management; |
| · | reviewing
related party transactions; |
| · | obtaining
and reviewing a report by the independent registered public accounting firm at least annually,
that describes our internal control procedures, any material weaknesses with such procedures,
and any steps taken to deal with such material weaknesses when required by applicable law;
and |
| · | approving
(or, as permitted, pre-approving) all audit and all permissible non-audit services, other
than de minimis non-audit services, to be performed by the independent registered public
accounting firm. |
The Audit
Committee operates under a written charter adopted by the Board that satisfies the applicable standards of Nasdaq.
Compensation
Committee
The
members of our Board’s compensation committee (the “Compensation Committee”) are Sriram Peruvemba, Dr. Jeffrey
M. Gilbert and Robert Tobias. Dr. Gilbert and Messrs. Peruvemba and Tobias are “independent” within the meaning
of the Nasdaq rules. In addition, each member of our Compensation Committee qualifies as a “non-employee director” under
Rule16b-3 of the Exchange Act. Our Compensation Committee assists the Board in the discharge of its responsibilities relating to the
compensation of the members of the Board and our executive officers. Mr. Peruvemba serves as the Chairman of our Compensation Committee.
The Compensation Committee‘s compensation-related
responsibilities include, among other matters:
| · | reviewing
and approving, or recommending that our Board approve, the compensation of our executive
officers; |
| · | reviewing
and recommending to our Board the compensation of our directors; |
| · | reviewing
and approving, or recommending that our Board approve, the terms of compensatory arrangements
with our executive officers; |
| · | administering
our stock and equity incentive plans; |
| · | reviewing
and approving, or recommending that our Board approve, incentive compensation and equity
plans; and |
| · | reviewing
and establishing general policies relating to compensation and benefits of our employees
and reviewing our overall compensation philosophy |
Mr. Moyer, our Principal
Executive Officer, President and Chairman of the Board, does not participate in the determination of his own compensation or the compensation
of directors. However, he makes recommendations to the Compensation Committee regarding the amount and form of the compensation of the
other executive officers and key employees, and he often participates in the Compensation Committee’s deliberations about such
persons’ compensation. Mr. Oliva, formerly our Principal Financial Officer, assisted the Compensation Committee in its deliberations
regarding executive officer, director and employee compensation, prior to his resignation as Principal Financial Officer on July 11,
2023. No other executive officers participate in the determination of the amount or the form of the compensation of executive officers
or directors. The Compensation Committee does not utilize the services of an independent compensation consultant to assist in its oversight
of executive and director compensation. On January 30, 2018, the Board adopted a written charter for the Compensation Committee.
Nominating and Corporate Governance Committee
The members of our Boards nominating and corporate
governance committee (“Nominating and Corporate Governance Committee”) are Robert Tobias, Dr. Jeffrey M. Gilbert and
Lisa Cummins, each of whom are “independent” within the meaning of the Nasdaq rules. In addition, each member of our Nominating
and Corporate Governance Committee qualifies as a “non-employee director” under Rule 16b-3 of the Exchange Act. The
purpose of the Nominating and Corporate Governance Committee is to recommend to the Board nominees for election as directors and persons
to be elected to fill any vacancies on the Board, develop and recommend a set of corporate governance principles and oversee the performance
of the Board. Mr. Tobias serves as Chairman of our Nominating and Corporate Governance Committee.
The Nominating and Corporate Governance Committee’s responsibilities
include, among other things:
| · | identifying,
evaluating and selecting, or recommending that our Board approve, nominees for election to
our Board and its committees; |
| · | evaluating
the performance of our Board and of individual directors; |
| · | considering
and making recommendations to our Board regarding the composition of our Board and its committees; |
| · | reviewing
developments in corporate governance practices; |
| · | evaluating
the adequacy of our corporate governance practices and reporting; |
| · | developing
and making recommendations to our Board regarding corporate governance guidelines and matters;
and |
| · | overseeing
an annual evaluation of the Board’s performance. |
Our Nominating and Governance Committee strives
for a Board composed of individuals who bring a variety of complementary skills, expertise or background and who, as a group, will possess
the appropriate skills and experience to oversee our business. The diversity of the members of the Board relates to the selection of
its nominees. While the Committee considers diversity and variety of experiences and viewpoints to be important factors, it does not
believe that a director nominee should be chosen or excluded solely or largely because of race, color, gender, national origin or sexual
orientation or identity. In selecting a director nominee for recommendation to our Board, our Nominating and Governance Committee focuses
on skills, expertise or background that would complement the existing members on the Board. Accordingly, although diversity may be a
consideration in the Committee’s process, the Committee and the Board do not have a formal policy regarding the consideration of
diversity in identifying director nominees.
When the Nominating and Governance Committee
has either identified a prospective nominee or determined that an additional or replacement director is required, the Nominating and
Governance Committee may take such measures as it considers appropriate in connection with its evaluation of a director candidate, including
candidate interviews, inquiry of the person or persons making the recommendation or nomination, engagement of an outside search firm
to gather additional information, or reliance on the knowledge of the members of the Board or management. In its evaluation of director
candidates, including the members of the Board eligible for re-election, the Nominating and Governance Committee considers a number of
factors, including: the current size and composition of the Board, the needs of the Board and the respective committees of the Board,
and such factors as judgment, independence, character and integrity, age, area of expertise, diversity of experience, length of service
and potential conflicts of interest.
The Nominating and Governance Committee of the Board selects director
nominees and recommends them to the full Board. In relation to such nomination process, the Nominating and Governance Committee:
|
· |
determines the criteria for the selection of prospective
directors and committee members; |
|
· |
reviews the composition and size of the Board and its
committees to ensure proper expertise and diversity among its members; |
|
· |
evaluates the performance and contributions of directors
eligible for re-election; |
|
· |
determines the desired qualifications for individual
directors and desired skills and characteristics for the Board; |
|
· |
identifies persons who can provide needed skills and
characteristics; |
|
· |
screens possible candidates for Board membership; |
|
· |
reviews any potential conflicts of interests between
such candidates and the Company’s interests; and |
|
· |
shares information concerning the candidates with the
Board and solicits input from other directors. |
The Nominating and Governance Committee has specified
the following minimum qualifications that it believes must be met by a nominee for a position on the Board: the highest personal and
professional ethics and integrity; proven achievement and competence in the nominee’s field and the ability to exercise sound business
judgment; skills that are complementary to those of the existing Board; the ability to assist and support management and make significant
contributions to our success; the ability to work well with the other directors; the extent of the person’s familiarity with the
issues affecting our business; an understanding of the fiduciary responsibilities that are required of a member of the Board; and the
commitment of time and energy necessary to diligently carry out those responsibilities. A candidate for director must agree to abide
by our Code of Ethics and Conduct.
After completing its evaluation, the Nominating
and Governance Committee makes a recommendation to the full Board as to the persons who should be nominated to the Board, and the Board
determines the nominees after considering the recommendation and report of the Committee.
Our Board does not have a policy with regard
to the consideration of director candidates recommended by stockholders but would consider candidates recommended by stockholders. Our
Board does not have such a policy because we do not reasonably expect to receive any director candidates recommended by stockholders
based on past meetings. In the case of director candidates recommended by stockholders, our Board would evaluate such candidates using
the factors described above.
Director Nomination Procedures
There have
been no material changes to the procedures by which security holders may recommend nominees to the Board.
Code
of Business Conduct and Ethics
We have
adopted a code of business conduct and ethics that applies to all of our employees and officers, including those officers responsible
for financial reporting. We have also adopted a code of business conduct and ethics that applies to our directors. Both codes of business
conduct and ethics are available on our website at https://ir.wisatechnologies.com/governance-docs. The information contained in or accessible
through the foregoing website is not incorporated herein by reference and is intended for informational purposes only. We intend to disclose
any amendments to such codes, or any waivers of its requirements, on our website to the extent required by applicable SEC rules and
Nasdaq requirements.
Compensation Committee Interlocks
and Insider Participation
None of
our executive officers has served as a member of a compensation committee (or if no committee performs that function, our Board) of any
other entity that has an executive officer serving as a member of our Board.
Executive
compensation
The following table sets forth all plan and non-plan
compensation for the last two completed fiscal years paid to all individuals who served as the Company’s principal executive officer
or acted in a similar capacity and the Company’s two other most highly compensated executive officers during the last completed
fiscal year, as required by Item 402(m)(2) of Regulation S-K of the Securities Act. We refer to all of these individuals collectively
as our “Named Executive Officers.”
Summary Compensation Table
Name and
Principal Position |
|
Year |
|
|
Salary
($) |
|
|
|
Bonus
($) |
|
|
|
Stock
awards ($)(1) |
|
|
|
Non-equity
inventive plan
compensation
($) |
|
All other
compensation
($) |
|
|
Total ($) |
|
Brett Moyer |
|
2023 |
|
$ |
404,250 |
|
|
$ |
777 |
|
|
$ |
90,000 |
|
|
$ |
— |
|
$ |
— |
|
$ |
495,027 |
|
President and Chief Executive Officer |
|
2022 |
|
$ |
404,250 |
|
|
$ |
19,250 |
(2) |
|
$ |
353,500 |
|
|
$ |
— |
|
$ |
— |
|
$ |
777,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
George Oliva(3) |
|
2023 |
|
$ |
255,939 |
|
|
$ |
178 |
|
|
$ |
36,000 |
|
|
$ |
— |
|
$ |
— |
|
$ |
292,117 |
|
Former Chief Financial Officer and Secretary |
|
2022 |
|
$ |
288,750 |
|
|
$ |
13,750 |
(4) |
|
$ |
209,500 |
|
|
$ |
— |
|
$ |
— |
|
$ |
512,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gary Williams |
|
2023 |
|
$ |
267,496 |
|
|
$ |
92 |
|
|
$ |
62,400 |
|
|
$ |
— |
|
$ |
— |
|
$ |
329,987 |
|
Chief Accounting Officer, VP of Finance |
|
2022 |
|
$ |
262,495 |
|
|
$ |
37,500 |
(5) |
|
$ |
65,500 |
|
|
$ |
— |
|
$ |
— |
|
$ |
365,495 |
|
(1) Amounts reported in this column do not
reflect the amounts actually received by our named executive officers. Instead, these amounts reflect the aggregate grant date fair value
of each restricted stock award (“RSA”) and each RSU granted to the named executive officers during the fiscal years ended
December 31, 2023 and 2022, as computed in accordance with Financial Accounting Standards Board (“FASB”) ASC 718. As
required by SEC rules, the amounts shown exclude the impact of estimated forfeitures related to service-based vesting conditions.
(2) Cash bonus of $19,250 earned in 2021
and paid to Mr. Moyer in 2022.
(3) On July 11, 2023, George Oliva
resigned as the Principal Financial Officer of the Company and assumed the role of the Senior Vice President of Finance and Strategic
Operations of the Company.
(4) Cash bonus of $13,750 earned in 2021
and paid to Mr. Oliva in 2022.
(5) Includes cash bonus of $12,500 earned
in 2021 that was paid to Mr. Williams in 2022.
Executive Employment Agreements and Arrangements
Brett Moyer
Effective August 24, 2022, the Company entered
into an employment agreement with Brett Moyer (the “Moyer Agreement”). Pursuant to the Moyer Agreement, Mr. Moyer agreed
to continue to serve as our Chief Executive Officer and President and Mr. Moyer’s initial annual base salary will be $404,250,
which is subject to adjustment approved by the Board. The Moyer Agreement has an unspecified term and Mr. Moyer will serve in his
position on an at-will basis, subject to the payment of severance in certain circumstances as set forth in the Moyer Agreement. Pursuant
to the Moyer Agreement, if Mr. Moyer is terminated without cause or resigns with good reason, he is entitled to receive twelve (12)
months of salary. Mr. Moyer is also entitled to continue to receive the employer subsidy under group health, dental and vision coverage
for the period of severance, which is twelve (12) months, a pro rata bonus for the year of termination and the acceleration of vesting
with respect to all unvested equity awards. Additionally, in the event of a Change in Control (as defined in each of the Moyer Agreement),
all unvested equity awards held by such executive officer shall immediately vest and become exercisable, provided that subject to any
exceptions in any award agreement entered into with such executive officer, no exercise may occur more than six (6) months after
such termination and in no event after the expiration of such award. Mr. Moyer is also entitled to be made whole for income, employment
and excise taxes in the event that payments, benefits and distributions, including the effects of accelerated vesting of equity, would
result in the application of the “golden parachute” excise tax under Internal Revenue Code Section 4999.
George Oliva
Effective August 24, 2022, the Company entered
into an employment agreement with George Oliva (the “Oliva Agreement”). Pursuant to the Oliva Agreement, Mr. Oliva
agreed to continue to serve as then Chief Financial Officer and Secretary of the Company, and Mr. Oliva’s initial annual base
salary was $288,750, which is subject to adjustment approved by the Board. The Oliva Agreement has an unspecified term and Mr. Oliva
served in his position on an at-will basis, subject to the payment of severance in certain circumstances as set forth in the Oliva Agreement.
Pursuant to the Oliva Agreement, if Mr. Oliva was terminated without cause or resigned with good reason, he was entitled to receive
twelve (12) months of salary. Mr. Oliva was also entitled to continue to receive the employer subsidy under group health, dental
and vision coverage for the period of severance, which is twelve (12) months, a pro rata bonus for the year of termination and the acceleration
of vesting with respect to all unvested equity awards. Additionally, in the event of a Change in Control (as defined in each of the Oliva
Agreement), all unvested equity awards held by such executive officer shall immediately vest and become exercisable, provided that subject
to any exceptions in any award agreement entered into with such executive officer, no exercise may occur more than six months after such
termination and in no event after the expiration of such award. Mr. Oliva was also entitled to be made whole for income, employment
and excise taxes in the event that payments, benefits and distributions, including the effects of accelerated vesting of equity, would
result in the application of the “golden parachute” excise tax under Internal Revenue Code Section 4999.
Effective July 11, 2023, George Oliva resigned
as Principal Financial Officer of the Company and entered into a separation agreement with the Company (the “Separation Agreement”),
whereby amongst other things, his only title would be Senior Vice President of Finance and Strategic Operations of the Company. The Separation
Agreement provided that Mr. Oliva’s employment would last until and through December 20, 2023 or such other date as mutually
agreed between the Company and Mr. Oliva (the “Separation Date”). In connection with the Separation Agreement, Mr. Oliva
was granted 30,000 RSAs on July 12, 2023 which are scheduled to fully vest on Mr. Oliva’s Separation Date. Additionally,
as of the date of the Separation Agreement, Mr. Oliva had a total of 1,499 unvested RSAs and RSUs. The Company agreed to vest all
of Mr. Oliva’s unvested RSAs and RSUs as of the Separation Date. The Separation Agreement also sets forth various terms regarding
the treatment of other employee benefits that Mr. Oliva was entitled to receive under the Company’s existing plans. During
the term of the Separation Agreement, Mr. Oliva’s base annual salary remained unchanged. As a material condition to the Separation
Agreement, Mr. Oliva executed a supplemental release, which included a customary release of claims by Mr. Oliva (on behalf
of himself, his heirs, executors, administrators and assigns) in favor of the Company.
Gary Williams
Effective August 24, 2022, the Company entered
into an employment agreement with Gary Williams (the “Williams Agreement”). Pursuant to the Williams Agreement, Mr. Williams
agreed to continue to serve as Chief Accounting Officer and Vice President of Finance of the Company, and Mr. Williams’ initial
annual base salary will be $262,495, which is subject to adjustment approved by the Board. The Williams Agreement has an unspecified
term and Mr. Williams will serve in his position on an at-will basis, subject to the payment of severance in certain circumstances
as set forth in the Williams Agreement. Pursuant to the Williams Agreement, if Mr. Williams is terminated without cause or resigns
with good reason, he is entitled to receive six (6) months of salary. Mr. Williams is also entitled to continue to receive
the employer subsidy under group health, dental and vision coverage for the period of severance, which is six (6) months, a pro
rata bonus for the year of termination and the acceleration of vesting with respect to all unvested equity awards.
Additionally, in the event of a Change in Control
(as defined in each of the Williams Agreement), all unvested equity awards held by such executive officer shall immediately vest and
become exercisable, provided that subject to any exceptions in any award agreement entered into with such executive officer, no exercise
may occur more than six (6) months after such termination and in no event after the expiration of such award.
Other Compensation
Other than as described above, there were no
post-employment compensation, pension or nonqualified deferred compensation benefits earned by our Named Executive Officers during the
years ended December 31, 2023 and 2022. We do not have any retirement, pension or profit-sharing programs for the benefit of our
directors, officers or other employees. The Board may recommend adoption of one or more such programs in the future.
Outstanding Equity Awards as of December 31,
2023
The following table provides information regarding
the unexercised warrants to purchase Common Stock and stock awards held by each of our named executive officers:
| Option/Warrant Awards | |
Stock Awards |
| |
| | |
| | |
| | |
| |
| | |
| | |
| | |
Equity |
| |
| | |
| | |
| | |
| |
| | |
| | |
| | |
incentive |
| |
| | |
| | |
| | |
| |
| | |
| | |
Equity | | |
plan |
| |
| | |
| | |
| | |
| |
| | |
| | |
incentive | | |
awards: |
| |
| | |
| | |
| | |
| |
| | |
| | |
plan | | |
Market or |
| |
| | |
| | |
| | |
| |
| | |
| | |
awards: | | |
payout |
| |
| | |
| | |
| | |
| |
| | |
| | |
Number of | | |
value of |
| |
Number of | | |
Number of | | |
| | |
| |
| | |
| | |
unearned | | |
unearned |
| |
Securities | | |
Securities | | |
| | |
| |
| | |
Market | | |
shares, | | |
shares, |
| |
underlying | | |
underlying | | |
| | |
| |
Number of | | |
value of | | |
units or | | |
units or |
| |
Unexercised | | |
Unexercised | | |
Option/ | | |
| |
shares or | | |
shares or | | |
other | | |
other |
| |
Options and | | |
Options | | |
Warrant | | |
Option/ | |
units of | | |
units of | | |
rights that | | |
rights that |
| |
Warrants | | |
and Warrants | | |
Exercise | | |
Warrant | |
stock that | | |
stock that | | |
have not | | |
have not |
| |
(#) | | |
(#) | | |
Price | | |
Expiration | |
have not | | |
have not | | |
vested | | |
vested |
Name | |
Exercisable | | |
Unexercisable | | |
($/Sh) | | |
Date | |
vested | | |
vested (1) | | |
(#) | | |
($) |
Brett Moyer | |
| — | | |
| — | | |
| — | | |
| — | |
| 833 | (2) | |
$ | 97.46 | (2) | |
| — | | |
— |
| |
| | | |
| | | |
| | | |
| | |
| 1,165 | (3) | |
| 136.31 | (3) | |
| | | |
|
| |
| | | |
| | | |
| | | |
| | |
| 333 | (4) | |
| 38.96 | (4) | |
| | | |
|
| |
| | | |
| | | |
| | | |
| | |
| 62,475 | (5) | |
| 7,309.58 | (5) | |
| | | |
|
| |
| | | |
| | | |
| | | |
| | |
| | | |
| | | |
| | | |
|
George
Oliva(6) | |
| — | | |
| — | | |
| — | | |
| — | |
| — | | |
$ | — | | |
| — | | |
— |
| |
| | | |
| | | |
| | | |
| | |
| | | |
| | | |
| | | |
|
Gary Williams | |
| — | | |
| — | | |
| — | | |
| — | |
| 66 | (7) | |
$ | 7.72 | (7) | |
| — | | |
— |
| |
| | | |
| | | |
| | | |
| | |
| 231 | (8) | |
| 27.03 | (8) | |
| | | |
|
| |
| | | |
| | | |
| | | |
| | |
| 43,316 | (9) | |
| 5.067.97 | (9) | |
| | | |
|
| (1) | Market value based upon the closing
market price of $0.117 on December 29, 2023. |
| (2) | Mr. Moyer was granted 2,500 shares
of restricted Common Stock on February 24, 2021, which vest in equal installments on
the first, second and third anniversaries of March 15, 2021. |
| (3) | Mr. Moyer was granted 2,500 shares
of restricted Common Stock on January 13, 2022, which vest as follows: 1/5th of the
grant to vest on September 15, 2022, and the remaining 4/5th of the grant to vest quarterly
in equal installments over the next 36 months on each December 15th, March 15th,
June 15th and September 15th thereafter until September 15, 2025. |
| (4) | Mr. Moyer was granted 500 shares
of restricted Common Stock on September 19, 2022, which vest in equal installments on
the first, second and third anniversaries of September 19, 2022. |
| (5) | Mr. Moyer was granted 75,000 shares
of restricted Common Stock on July 12, 2023, which vest in equal installments, commencing
on November 15, 2023 and every six (6) months thereafter until May 15, 2026. |
| (6) | Effective July 11, 2023, George
Oliva resigned as Principal Financial Officer of the Company and entered into the Separation
Agreement with the Company, whereby amongst other things, his only title would be Senior
Vice President of Finance and Strategic Operations of the Company. In connection with the
Separation Agreement, Mr. Oliva was granted 30,000 RSAs on July 12, 2023 which
were fully vested on December 1, 2023. Additionally, as of the date of the Separation
Agreement, Mr. Oliva had a total of 1,499 unvested RSAs and RSUs, which were fully vested
on December 1, 2023. |
| (7) | Mr. Williams was granted 200 shares
of restricted Common Stock on February 24, 2021, which vest in equal installments on
the first, second and third anniversaries of March 15, 2021. |
| (8) | Mr. Williams was granted 500 shares
of restricted Common Stock on January 13, 2022, which vest as follows: 1/5th of the
grant to vest on September 15, 2022, and the remaining 4/5th of the grant to vest quarterly
in equal installments over the next 36 months on each December 15th, March 15th,
June 15th and September 15th thereafter until September 15, 2025. |
| (9) | Mr. Williams
was granted 52,000 shares of restricted Common Stock on July 12, 2023, which vest in
equal installments, commencing on November 15, 2023 and every six (6) months thereafter
until May 15, 2026. |
2022 Management Team Retention Bonus Plan
On September 1, 2022, the Company adopted
its Management Team Retention Bonus Plan (the “Retention Plan”), to incentivize certain management level employees (the “Managers”)
to remain intact through and shortly following a potential “Change of Control” (as defined in the Retention Plan). The aggregate
Retention Plan bonus amounts for all Managers was $1,250,000.
The Retention Plan provided that each Manager
is eligible to receive a lump sum cash amount under the Retention Plan, on the earlier of the six-month anniversary of the date of a
Change of Control or at the time of such Manager’s involuntary termination other than for “Cause” (as defined in the
Retention Plan) or termination for “Good Reason” (as defined in the Retention Plan). The Retention Plan expired on June 30,
2023, unused, and no accruals were made.
Equity Incentive Plans
2018 Long-Term Stock Incentive Plan of
the Company (the “LTIP”)
On January 30, 2018, the Board approved the
establishment of the LTIP. The LTIP is intended to enable the Company to continue to attract able directors, employees, and consultants
and to provide a means whereby those individuals upon whom the responsibilities rest for successful administration and management of the
Company, and whose present and potential contributions are of importance, can acquire and maintain Common Stock ownership, thereby strengthening
their concern for the Company’s welfare. The aggregate maximum number of shares of Common Stock (including shares underlying options)
that may be issued under the LTIP pursuant to awards of Restricted Shares or Options will be limited to 15% of the outstanding shares
of Common Stock, which calculation shall be made on the first trading day of each new fiscal year; provided that, in any year no more
than 8% of the Common Stock or derivative securitization with Common Stock underlying 8% of the Common Stock may be issued in any fiscal
year. Based on the total shares of Common Stock outstanding on January 1, 2024, up to 2,668,548 shares of Common Stock are available for
participants under the LTIP. The number of shares of Common Stock that are the subject of awards under the LTIP which are forfeited or
terminated, are settled in cash in lieu of shares of Common Stock or in a manner such that all or some of the shares covered by an award
are not issued to a participant or are exchanged for awards that do not involve shares will again immediately become available to be issued
pursuant to awards granted under the LTIP. If shares of Common Stock are withheld from payment of an award to satisfy tax obligations
with respect to the award, those shares of Common Stock will be treated as shares that have been issued under the LTIP and will not again
be available for issuance under the LTIP.
The January 2018 Restricted Stock Grant
and the LTIP were approved by a majority of the Company’s stockholders on January 31, 2018.
At a special meeting of our stockholders held
on January 24, 2023, our stockholders approved certain amendments to the LTIP to: (i) increase the annual share limit of Common
Stock that may be issued in any single fiscal year only for the 2023 fiscal year under the LTIP from 8% of the shares of Common Stock
outstanding to 15% of the shares of Common Stock outstanding (which amount equates to the maximum amount that may be issued in the aggregate
under the LTIP); and (ii) permit immediately quarterly calculations based on the number of shares of Common Stock outstanding as
of the first trading day of each fiscal quarter, rather than solely as of the first trading day of the fiscal year.
2020 Stock Incentive Plan (the “2020
Plan”)
On July 27, 2020, the Board approved the
establishment of the 2020 Plan and the reservation of an aggregate of 650,000 shares of Common Stock authorized for issuance under the
2020 Plan, subject to stockholder approval, which was obtained on October 20, 2020. The 2020 Plan authorizes the grant of equity-based
compensation to the Company’s senior managers, employees, directors, consultants, professionals and service providers in the form
of stock options, restricted stock and RSUs. All options granted under the 2020 Plan will be considered non-qualified stock options. The
purpose of the 2020 Plan is to attract and retain senior managers, employees, directors, consultants, professionals and service providers
who provide services to the Company, provided that such services are bona fide services that are not of a capital-raising nature during
this period of unprecedented uncertainty and volatility in the COVID-19 environment and its impact on the value of the Company’s
equity and grants. As of December 31, 2023, no options or RSAs have been granted under the 2020 Plan while an aggregate , net of
cancellations, of 6,285 RSUs have been issued under the 2020 Plan of which 67 remained unvested at December 31, 2023.
Technical Team Retention Plan of 2022 (the
“2022 Plan”)
On June 21, 2022, the Board adopted the Company’s
Technical Team Retention Plan of 2022 (the “2022 Plan”) and the reservation of an aggregate of 5,000 shares of the Company’s
common stock authorized for issuance under the 2022 Plan, subject to stockholder approval. The 2022 Plan authorizes the grant of equity-based
compensation, to the Company’s key managers, employees, consultants who provide technical and engineering and related services to
the Company, in the form of restricted stock and RSUs. On August 19, 2022, the Company held the 2022 Annual Meeting of Stockholders
and approved the adoption of the 2022 Plan and the reservation of an aggregate of 5,000 shares of the Company’s common stock. On
September 19, 2022, the Company granted, an aggregate of 3,700 RSUs to managers, employees, consultants. Each RSU represents the
right to receive one share of the Company’s common stock under the 2022 Plan. As of December 31, 2023, no options or RSAs have
been granted under the 2022 Plan while an aggregate, net of cancellations, of 3,450 RSUs have been issued under the 2022 Plan of which
2,531 remained unvested at December 31, 2023.
DIRECTOR COMPENSATION
The table below sets forth the compensation paid to our directors
during the fiscal year ended December 31, 2023.
Fees Earned
Director |
|
Fees Earned
or Paid in Cash | |
Stock Awards (1) | |
All Other Compensation | |
Total | |
Lisa Cummins |
|
$ | 30,000 | |
$ | 13,200 | |
$ | - | |
$ | 43,200 | (2) |
Dr. Jeffrey M. Gilbert |
|
$ | 20,000 | |
$ | 13,200 | |
$ | - | |
$ | 33,200 | (3) |
David Howitt |
|
$ | 20,000 | |
$ | 13,200 | |
$ | - | |
$ | 33,200 | (4) |
Helge Kristensen |
|
$ | 20,000 | |
$ | 13,200 | |
$ | - | |
$ | 33,200 | (5) |
Sriram Peruvemba |
|
$ | 20,000 | |
$ | 13,200 | |
$ | - | |
$ | 33,200 | (6) |
Robert Tobias |
|
$ | 20,000 | |
$ | 13,200 | |
$ | - | |
$ | 33,200 | (7) |
Wendy Wilson |
|
$ | 20,000 | |
$ | 13,200 | |
$ | - | |
$ | 33,200 | (8) |
| (1) | Amounts reported in this column do not reflect
the amounts actually received by our non-employee directors. Instead, these amounts reflect
the aggregate grant date fair value of each restricted stock award and RSU granted to the
Company’s directors during the fiscal year ended December 31, 2023, as computed
in accordance with FASB ASC 718. As required by SEC rules, the amounts shown exclude the
impact of estimated forfeitures related to service-based vesting conditions. |
| (2) | Ms. Cummins was granted 11,000 shares
of restricted Common Stock on July 12, 2023, which vest in equal installments, commencing
on November 15, 2023 and every six (6) months thereafter until May 15, 2026. |
| (3) | Dr. Gilbert was granted 11,000 shares
of restricted Common Stock on July 12, 2023, which vest in equal installments, commencing
on November 15, 2023 and every six (6) months thereafter until May 15, 2026. |
| (4) | Mr. Howitt was granted 11,000 shares
of restricted Common Stock on July 12, 2023, which vest in equal installments, commencing
on November 15, 2023 and every six (6) months thereafter until May 15, 2026. |
| (5) | Mr. Kristensen was granted 11,000 shares
of restricted Common Stock on July 12, 2023, which vest in equal installments, commencing
on November 15, 2023 and every six (6) months thereafter until May 15, 2026. |
| (6) | Mr. Peruvemba was granted 11,000 shares
of restricted Common Stock on July 12, 2023, which vest in equal installments, commencing
on November 15, 2023 and every six (6) months thereafter until May 15, 2026. |
| (7) | Mr. Tobias was granted 11,000 shares
of restricted Common Stock on July 12, 2023, which vest in equal installments, commencing
on November 15, 2023 and every six (6) months thereafter until May 15, 2026 |
| (8) | Ms. Wilson was granted 11,000 shares
of restricted Common Stock on July 12, 2023, which vest in equal installments, commencing
on November 15, 2023 and every six (6) months thereafter until May 15, 2026. |
DIVIDEND
POLICY
We have never declared or paid any cash dividends
on shares of our Common Stock and do not intend to pay any cash dividends in the foreseeable future. We anticipate that we will retain
all of our future earnings for use in the development of our business and for general corporate purposes. Any determination to pay dividends
in the future will be at the discretion of our Board. Accordingly, investors must rely on sales of their Common Stock after price appreciation,
which may never occur, as the only way to realize any future gains on their investments.
Dividends on the Series B Preferred Stock
will be paid in-kind in additional shares of Series B Preferred Stock based on the stated value of $100.00 per share at an assumed
dividend rate of 20%. The PIK dividends will be a one-time payment payable to holders of the Series B Preferred Stock of record
at the close of business on the one-year anniversary of October 17, 2023.
CAPITALIZATION
The following table sets forth our consolidated
cash and cash equivalents and capitalization as of September 30, 2023:
● |
on an actual basis; |
|
|
● |
on a pro forma basis, after giving effect to: (i) the Series B Preferred
Stock Offering (including the Warrant Repurchase), (ii) the Warrant Inducement Transaction, (iii) repayment in full of the Meriwether
Loan, (iv) the Restricted Stock Activity, (v) the Conversion, (vi) the 2024 Bridge Private Placement, (vii) repayment in full of the 2024
Bridge Promissory Notes and (viii) the exercise of 32,600 Series B Preferred Stock Warrants; and |
|
|
● |
on a pro forma as adjusted basis to
give effect to: (i) the transactions set forth above, (ii) the sale of 100,000,000 Units at the assumed public offering price of $0.10
per Unit (the closing sale price of our Common Stock on Nasdaq on January 29, 2024, and assuming no sale of any Pre-Funded Units, and
no exercise of the Warrants issued in connection with this offering), and after deducting placement agent fees and estimated offering
expenses payable by us and (iii) the Series B Repurchase and Cancellation Transaction. |
You should read the following table in conjunction
with the sections entitled “Use of Proceeds” and “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” included elsewhere in this prospectus and our unaudited consolidated financial statements and related
notes included elsewhere in this prospectus.
|
|
As
of September 30, 2023
(unaudited) |
|
(in thousands, except share data) |
|
Actual |
|
|
Pro
Forma |
|
|
Pro
Forma
As
Adjusted(1) |
|
Cash
and cash equivalents |
|
$ |
212 |
|
|
$ |
3,793 |
|
|
$ |
6,567 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Short
term-debt |
|
|
629 |
|
|
|
- |
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Series B
Convertible Preferred Stock, par value $0.0001 per share: zero shares authorized, zero shares outstanding, actual; 375,000 shares
authorized, 62,657 shares outstanding, pro forma; and 375,000 shares authorized, zero shares outstanding, pro forma as adjusted |
|
|
- |
|
|
|
2,471 |
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders’
Equity (Deficit): |
|
|
|
|
|
|
|
|
|
|
|
|
Common
Stock, par value $0.0001 per share: 200,000,000 shares authorized, 6,579,957 shares outstanding, actual; 34,562,545 shares outstanding,
pro forma; and 134,562,545 shares outstanding, pro forma as adjusted |
|
|
7 |
|
|
|
10 |
|
|
|
20 |
|
Additional
paid-in capital |
|
|
241,557 |
|
|
|
243,785 |
|
|
|
249,020 |
|
Accumulated
deficit |
|
|
(240,679 |
) |
|
|
(241,170 |
) |
|
|
(241,170 |
) |
Total
stockholders’ equity (deficit) |
|
|
885 |
|
|
|
2,624 |
|
|
|
7,869 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
capitalization |
|
$ |
1,514 |
|
|
$ |
5,095 |
|
|
$ |
7,869 |
|
|
(1) |
“Pro forma and Pro forma as adjusted”
balances do not contemplate the accounting classification or valuation of the warrants or any embedded derivatives in the Series B
Preferred Stock or the Units which may require bifurcation as separate instruments to be accounted for. |
A $0.03 increase in the assumed public
offering price of $0.10 per Unit (the closing sale price of our Common Stock on Nasdaq on January 29, 2024), would increase cash and
cash equivalents and total stockholders’ equity by approximately $2.8 million, after deducting placement agent fees and
estimated offering expenses payable by us, and assuming the sale of 100,000,000 Units set forth on the cover page of this prospectus
remains the same and no sale of any Pre-Funded Units in this offering. The pro forma as adjusted information discussed above is
illustrative only and will adjust based on the actual public offering price and other terms of this offering determined at
pricing.
The total number of shares of our Common Stock
reflected in the discussion and table above, on an actual basis, is based on 6,579,957 shares of our Common Stock outstanding as of September 30,
2023, but excludes the following as of such date: (a) up to an aggregate of 5,635,290 shares of Common Stock issuable upon
exercise of our outstanding warrants with an weighted average exercise price of $5.45, (b) 209,312 shares of Common Stock reserved
for future issuance under the LTIP, the 2020 Plan and the 2022 Plan, and (d) an aggregate of 5,466 shares of Common Stock issuable
upon vesting of RSUs that were issued pursuant to the 2020 Plan and 2022 Plan, none of which have vested as of September 30, 2023.
Certain
relations and related person transactions
The following is a description
of transactions since January 1, 2022, to which we have been a participant in which the amount involved exceeded or will exceed
the lesser of (i) $120,000 or (ii) 1% of the average of our total assets for the years ended December 31, 2023 and 2022,
and in which any of our directors, executive officers or holders of more than 5% of our voting securities, or any members of their immediate
family, had or will have a direct or indirect material interest, other than compensation arrangements which are described under “Executive
Compensation.”
Helge Kristensen
Mr. Kristensen has
served as a member of the Board since 2010. Mr. Kristensen serves as vice president of Hansong Technology, an original device manufacturer
of audio products based in China, president of Platin Gate Aps, a company with focus on service-branding in lifestyle products as well
as pro line products based in Denmark and co-founder and director of Inizio Capital, an investment company based in the Cayman Islands.
For the fiscal years
ended December 31, 2023 and 2022, Hansong Technology purchased modules from the Company of approximately $88,000 and $361,000,
respectively, and made payments to the Company of approximately $254,000 and $191,000, respectively. For the fiscal years ended
December 31, 2023 and 2022, Hansong Technology sold speaker products to the Company of approximately $128,000 and $1,891,000,
respectively, and the Company made payments to Hansong Technology of approximately $1,223,000 and $1,831,000, respectively.
At December 31,
2023 and 2022, the Company owed Hansong Technology approximately $250,000 and $874,000, respectively. At December 31, 2023 and
2022, Hansong Technology owed the Company approximately $4,000 and $170,000, respectively.
As of December 31, 2023
and December 31, 2022, Mr. Kristensen owned less than 1.0% of the outstanding shares of the Common Stock.
David Howitt
Mr. Howitt has served
as a member of the Board since December 2021. Since March 2004, Mr. Howitt has served as the founder and CEO of Meriwether
Group LLC (“MWG”), a strategic consulting firm that works with disruptive consumer brands by integrating their visions, developing
growth strategies, scaling their brands, and increasing revenue in order to build enterprise value. MWG, which is also majority-owned
by Mr. Howitt, owns a 25% general partner interest in Meriwether Group Capital Hero Fund LP (“Meriwether”).
On September 8,
2023, the Company entered into a Loan and Security Agreement with Meriwether. Pursuant to the Loan and Security Agreement, Meriwether
provided the Company with a term loan in the principal amount of $650,000 that was scheduled to mature on November 7, 2023,
subject to further extension (the “Meriwether Loan”). The maturity date of the Meriwether Loan was subsequently extended to
December 7, 2023. The Company paid back the loan in full on December 7, 2023.
DESCRIPTION
OF THE SECURITIES WE ARE OFFERING
We are offering up to 100,000,000 Units, with each Unit consisting
of one share of our Common Stock and a Warrant to purchase one share of our Common Stock; and up to 100,000,000 Pre-Funded Units, with
each Pre-Funded Unit consisting of a Pre-Funded Warrant to purchase one share of our Common Stock, and a Warrant. The Units and Pre-Funded
Units have no stand-alone rights and will not be certificated or issued as stand-alone securities. The shares of our Common Stock included
in the Units will be issued separately from the Warrants included in the Units and the Pre-Funded Warrants included in the Pre-Funded
Units will be issued separately from the Warrants included in the Pre-Funded Units. We are also registering the shares of our Common Stock
issuable from time to time upon exercise of the Warrants and Pre-Funded Warrants offered hereby. The following descriptions of our Common
Stock, Pre-Funded Warrants and Warrants and certain provisions of our Certificate of Incorporation, our by-laws and Delaware law are summaries.
You should also refer to our Certificate of Incorporation, by-laws, form of Warrant and form of Pre-Funded Warrant, which are filed as
exhibits to the registration statement of which this prospectus is part.
Common Stock
The material terms of our Common Stock are described
under the caption “Description of Capital Stock” in this prospectus.
Warrants and Pre-Funded Warrants
The following
summary of certain terms and provisions of the Warrants and Pre-Funded Warrants offered hereby is not complete and is subject to, and
qualified in its entirety by, the provisions of the warrant agent agreement between us and VStock Transfer, LLC, as warrant agent, and
the form of Warrant and Pre-Funded Warrant, all of which are filed as exhibits to the registration statement of which this prospectus
is a part. Prospective investors should carefully review the terms and provisions set forth in the warrant agent agreement, including
the annexes thereto, and the form of Warrant and Pre-Funded Warrant.
Form. Pursuant
to warrant agent agreement between us and VStock Transfer, LLC, as Warrant and Pre-Funded Warrant agent, the Warrants and Pre-Funded
Warrants will be issued in book-entry form and shall initially be represented only by one or more global warrants deposited with the
warrant agent, as custodian on behalf of The Depository Trust Company, or DTC, and registered in the name of Cede & Co., a nominee
of DTC, or as otherwise directed by DTC.
Exercisability. The Pre-Funded Warrants are exercisable at any
time after their original issuance until they are exercised in full. The Warrants shall not be exercisable until after the date that Stockholder
Approval is obtained, and will expire on the fifth anniversary of the date on which Stockholder Approval is received and deemed effective
under Delaware Law. Each of the Warrants and the Pre-Funded Warrants will be exercisable, at the option of each holder, in whole or in
part by delivering to us a duly executed exercise notice accompanied by payment in full in immediately available funds for the number
of shares of Common Stock subscribed for upon such exercise (except in the case of a cashless exercise as discussed below). The Pre-Funded
Warrants may be exercised on a cashless basis. If a registration statement registering the issuance of the shares of Common Stock underlying
the Warrants under the Securities Act is not effective or available, the holder may, in its sole discretion, elect to exercise the Warrants
through a cashless exercise, in which case the holder would receive upon such exercise the net number of shares of Common Stock determined
according to the formula set forth in the Warrants. The holder of a Warrant may also effect an “alternative cashless exercise”
on or after the thirty (30) day anniversary of the date that Stockholder Approval is obtained. 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. No fractional shares of Common Stock will be issued in connection with the exercise of a Warrant or Pre-Funded Warrant.
In lieu of fractional shares, we will pay the holder an amount in cash equal to the fractional amount multiplied by the exercise price.
Exercise
Limitation. A holder will not have the right to exercise any portion of the Pre-Funded Warrants or Warrants if the holder
(together with its affiliates) would beneficially own in excess of 4.99% (or, upon election by a 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 exercise, as such percentage
ownership is determined in accordance with the terms of the Warrants and Pre-Funded Warrants. However, any holder may increase or decrease
such percentage to any other percentage not in excess of 9.99%, upon at least 61 days’ prior notice from the holder to us
with respect to any increase in such percentage.
Exercise
Price. The exercise price for the Pre-Funded Warrants is $0.0001 per share. The initial exercise price per Warrants is 100%
of the public offering price of each Unit sold in this offering. The exercise price and number of shares of Common Stock issuable upon
exercise will adjust in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications,
dilutive issuances or similar events. In addition. on the sixth (6th) trading day following the date on which the next reverse
stock split is effected by the Company of its outstanding Common Stock following the date of issuance of the Warrants, the exercise price
per Warrant shall be adjusted to equal the lower of (a) the exercise price then in effect (after taking into account and adjusting for
the reverse stock split) and (b) the lowest VWAP (as defined in the Warrants) of the Common Stock in the 5 trading days immediately prior
to such date.
Transferability.
Subject to applicable laws, the Warrants and the Pre-Funded Warrants may be offered for sale, sold, transferred or assigned without our
consent.
Exchange
Listing. We do not intend to apply for the listing of the Warrants or Pre-Funded Warrants offered in this offering on any
stock exchange. Without an active trading market, the liquidity of the Warrants and Pre-Funded Warrants will be limited.
Rights
as a Shareholder. Except as otherwise provided in the Warrants or the Pre-Funded Warrants or by virtue of such holder’s
ownership of our shares of Common Stock, the holder of a Warrant or Pre-Funded Warrant does not have the rights or privileges of a holder
of our shares of Common Stock, including any voting rights, until the holder exercises the Warrant or Pre-Funded Warrant.
Fundamental
Transactions. In the event of a fundamental transaction, as described in the Warrants and the Pre-Funded Warrants, and generally
including, with certain exceptions, any reorganization, recapitalization or reclassification of our shares of Common Stock, the sale,
transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger with or into another
person, the acquisition of more than 50% of our outstanding shares of Common Stock, or any person or group becoming the beneficial owner
of 50% of the voting power represented by our outstanding shares of Common Stock, the holders of the Warrants and the Pre-Funded Warrants
will be entitled to receive consideration in an amount equal to the Black Scholes Value (as defined in the Warrants and Pre-Funded Warrants)
of the remaining unexercised portion of the Warrants or Pre-Funded Warrants on the date of consummation of such fundamental transaction.
Governing
Law. The Pre-Funded Warrants and the Warrants are governed by New York law.
PLAN
OF DISTRIBUTION
Pursuant to the placement agency agreement, dated
as of [__], 2024, we have engaged Maxim to act as our exclusive placement agent (“Maxim” or the “placement agent”)
to solicit offers to purchase the securities offered by this prospectus. The placement agent is not purchasing or selling any securities,
nor is it required to arrange for the purchase and sale of any specific number or dollar amount of securities, other than to use its
“reasonable best efforts” to arrange for the sale of the securities by us. Therefore, we may not sell the entire amount of
securities being offered. There is no minimum amount of proceeds that is a condition to closing of this offering. We will enter into
a securities purchase agreement directly with the investors, at the investor’s option, who purchase our securities in this offering.
Investors who do not enter into a securities purchase agreement shall rely solely on this prospectus in connection with the purchase
of our securities in this offering. The placement agent may engage one or more subagents or selected dealers in connection with this
offering.
The placement agency agreement provides that
the placement agent’s obligations are subject to conditions contained in the placement agency agreement.
We will deliver the securities being issued to
the investors upon receipt of investor funds for the purchase of the securities offered pursuant to this prospectus. We expect to deliver
the securities being offered pursuant to this prospectus on or about ,
2024.
Placement Agent Fees, Commissions and Expenses
Upon the closing of this offering, we will
pay the placement agent a cash transaction fee equal to 7.0% of the aggregate gross cash proceeds to us from the sale of the securities
in the offering. Pursuant to the placement agency agreement, we will agree to reimburse the placement agent for certain out-of-pocket
expenses of the placement agent payable by us, in an aggregate amount not to exceed $75,000. The placement agency agreement, however,
will provide that in the event this offering is terminated, the placement agent will only be entitled to the reimbursement of out-of-pocket
accountable expenses actually incurred in accordance with Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 5110(f)(2)(I).
The following table shows the public offering
price, placement agent fees and proceeds, before expenses, to us.
| |
| Per
Unit | | |
| Per
Pre-Funded Unit
| | |
| Total | |
Public offering price | |
| $ | | |
| $ | | |
| $ | |
Placement Agent Fees (7.0%) | |
| $ | | |
| $ | | |
| $ | |
Proceeds,
before fees and expenses, to us(1) | |
| $ | | |
| $ | | |
| $ | |
| (1) | We
estimate that the total expenses of the offering, including registration, filing and listing
fees, printing fees and legal and accounting expenses, but excluding the placement agent
commission, will be approximately $, all of which are payable by us. This figure includes,
among other things, the placement agent’s fees and expenses (including the legal fees,
costs and expenses for the placement agent’s legal counsel) up to $75,000. |
Right Of First Refusal/Tail
For
a period of twelve (12) months from the Closing Date, we granted the placement agent the right of first refusal to act as sole managing
underwriter and sole book runner, sole placement agent, or sole sales agent, for any and all future public or private equity, equity-linked
or debt (excluding commercial bank debt) offerings for which we retain the service of an underwriter, agent, advisor, finder or other
person or entity in connection with such offering during such twelve (12) month period of the Company, or any successor to or any subsidiary
of the Company. We shall not offer to retain any entity or person in connection with any such offering on terms more favorable than terms
on which it offers to retain the placement agent. Such offer shall be made in writing in order to be effective. The placement agent shall
notify us within ten (10) business days of its receipt of the written offer contemplated above as to whether or not it agrees to accept
such retention. If the placement agent should decline such retention, we shall have no further obligations to the placement agent with
respect to the offering for which it has offered to retain the placement agent, except as otherwise provided for herein. Such
right of first refusal shall not have a duration of more than three (3) years from commencement of sales.
For
a period of 12 months from the final Closing Date, we will pay the placement agent a cash fee equal to 8.0% of the gross proceeds of
any equity, equity-linked, or debt financing, or any other capital raising activity received by us from investors introduced to us by
the placement agent.
Lock-Up
Agreements
We and each of our officers and directors
have agreed, subject to certain exceptions, not to offer, issue, sell, contract to sell, encumber, grant any option for the sale of or
otherwise dispose of any shares of our Common Stock or other securities convertible into or exercisable or exchangeable for our Common
Stock for a period of 60 days after this offering is completed without the prior written consent of the placement agent.
The placement agent may in its sole discretion
and at any time without notice release some or all of the shares subject to lock-up agreements prior to the expiration of the lock-up
period. When determining whether or not to release shares from the lock-up agreements, the placement agent will consider, among other
factors, the security holder’s reasons for requesting the release, the number of shares for which the release is being requested
and market conditions at the time.
Indemnification
We have agreed to indemnify the placement agent
against certain liabilities, including liabilities under the Securities Act, and to contribute to payments that the placement agent may
be required to make for these liabilities.
Other Compensation
If within twelve months following the consummation
of this offering, we complete any equity, equity-linked, convertible or debt or other capital-raising activity of the Company for which
the placement agent is not acting as underwriter or placement agent (other than the exercise by any person or entity of any options,
warrants or other convertible securities) with any of the investors that were contacted, introduced or participated in this offering
(excluding any investors that either held securities of the Company prior to the closing of this offering, or that were introduced by
us to the placement agent), then we shall pay to the placement agent a commission as described in this section, in each case only with
respect to the portion of such financing received from such investors.
Regulation M
The placement agent may be deemed to be an underwriter
within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any profit realized on the
resale of the securities sold by it while acting as principal might be deemed to be underwriting discounts or commissions under the Securities
Act. As an underwriter, the placement agent would be required to comply with the requirements of the Securities Act and the Exchange
Act, including, without limitation, Rule 10b-5 and Regulation M under the Exchange Act. These rules and regulations may limit
the timing of purchases and sales of our securities by the placement agent acting as principal. Under these rules and regulations,
the placement agent (i) may not engage in any stabilization activity in connection with our securities and (ii) may not bid
for or purchase any of our securities or attempt to induce any person to purchase any of our securities, other than as permitted under
the Exchange Act, until it has completed its participation in the distribution.
Determination
of Offering Price and Warrant Exercise Price
The
actual offering price of the securities we are offering, and the exercise price of the Warrants and Pre-Funded Warrants included in the
Units and Pre-Funded Units that we are offering, were negotiated between us, the placement agent and the investors in the
offering based on the trading of our shares of Common Stock prior to the offering, among other
things. Other factors considered in determining the public offering price of the securities we are offering, as well as the exercise
price of the Warrants that we are offering include our history and prospects, the stage of development of our business, our business
plans for the future and the extent to which they have been implemented, an assessment of our management, the general conditions of the
securities markets at the time of the offering and such other factors as were deemed relevant.
Electronic Distribution
A prospectus in electronic format may be made
available on a website maintained by the placement agent. In connection with the offering, the placement agent or selected dealers may
distribute prospectuses electronically. No forms of electronic prospectus other than prospectuses that are printable as Adobe® PDF
will be used in connection with this offering.
Other than the prospectus in electronic format,
the information on the placement agent’s website and any information contained in any other website maintained by the placement
agent is not part of the prospectus or the registration statement of which this prospectus forms a part, has not been approved and/or
endorsed by us or the placement agent in its capacity as placement agent and should not be relied upon by investors.
Certain Relationships
The placement agent and its respective affiliates
have provided, and may provide from time to time in the future certain commercial banking, financial advisory, investment banking and
other services for us in the ordinary course of their business, for which they may receive customary fees and commissions. In addition,
from time to time, the placement agent and its respective affiliates may effect transactions for their own account or the account of
customers, and hold on behalf of themselves or their customers, long or short positions in our debt or equity securities or loans, and
may do so in the future. However, except as disclosed in this prospectus, we have no present arrangements with the placement agent for
any further services.
Below is a description of certain recent investment
banking and financial advisory services that Maxim has provided to us in the ordinary course of business, for which Maxim received customary
fees, commissions and other compensation.
Advisory Agreement
On January 2, 2024, we entered
into an advisory agreement (the “Advisory Agreement”) with the placement agent for a term of twelve months (subject to early
termination by either party after six months) to serve as our financial advisor to provide general financial advisory and investment
banking services. On February 2, 2024, we terminated the Advisory Agreement and no compensation was paid to the placement agent under
the Advisory Agreement.
December 2023 Warrant Inducement
On December 5, 2023, we entered into the Inducement
Agreements with the Holders. Pursuant to the Inducement Agreements, the Holders agreed to a reduced exercise
price of $35.72 per share of Series B Preferred Stock, while maintaining the Conversion Price, upon the exercise of any Existing Warrants
during the Inducement Period. We engaged Maxim as exclusive financial advisor in connection with the Inducement Agreements pursuant to
a financial advisory agreement, dated December 5, 2023, by and between us and Maxim, and paid Maxim a cash financial advisory fee
equal to 8% of the aggregate gross proceeds received from the Holders’ exercise of their Existing Warrants and to reimbursed Maxim
up to $10,000 for its accountable legal expenses in connection therewith.
October 2023 Offering
On October 17, 2023, we completed a public
offering consisting of an aggregate of 87,000 units (each a “October 2023 Unit” and collectively, the “October 2023
Units”), with each October 2023 Unit consisting of (A) one (1) share of our Series B Preferred
Stock, and (B) two Series B Preferred Stock purchase warrants (each, a “Preferred Warrant” and collectively, the
“Preferred Warrants”), with each Preferred Warrant exercisable for one share of Series B Preferred Stock (the “Preferred
Warrant Shares”), at the public offering price of $55.00 per October 2023 Unit. The Preferred Warrants are immediately exercisable,
each with an exercise price of $55.00 and expire on October 17, 2025. Maxim acted as the exclusive placement agent for us in connection
with the offering. Pursuant to that certain placement agency agreement, dated October 16, 2023, by and between us and Maxim, Maxim
was paid a cash fee of 8.0% of the aggregate gross cash proceeds to us from the sale of the securities in the offering; provided, however,
the cash fee was reduced to 5.0% from the sale of securities in the offering to those certain investors having a prior existing relationship
with us.
May 2023 Warrant Inducements
On May 15, 2023, we entered into warrant
exercise inducement offer letters (“Inducement Letters”) with holders of (i) common stock purchase warrants exercisable
for an aggregate of up to 1,674,414 shares of Common Stock, at an exercise price of $1.91 per share of Common Stock (the “March Warrants”)
and (ii) common stock purchase warrants exercisable for an aggregate of up to 1,486,132 shares of Common Stock at an exercise price
of $1.41 per share of Common Stock (the “April Warrants” and, together with the March Warrants, the “2023
Existing Warrants”) the 2023 Existing Warrants (collectively, the “Exercising Holders”) pursuant to which the Exercising
Holders agreed to exercise for cash certain of the 2023 Existing Warrants to purchase up to 1,486,132 shares of Common Stock in exchange
for our agreement to issue new warrants (the “Inducement Warrants”) on substantially the same terms as the 2023 Existing
Warrants, except as set forth herein. Maxim acted as financial advisor to the Company in connection with the offering and will receive
financial advisory fees in connection therewith.
January 2023
Offering
On January 31,
2023, we entered into a securities purchase agreement with certain institutional investors pursuant to which we agreed to issue and sell
to such investors (i) in a registered direct offering, 201,544 shares of our Common Stock and pre-funded warrants to purchase up
to 381,762 shares of our Common Stock, at an exercise price of $0.0001 per share, and (ii) in a concurrent private placement, Common
Stock purchase warrants exercisable for an aggregate of up to 874,959 shares of our Common Stock, at an exercise price of $10.49 per
share of our Common Stock. The securities issued in the registered direct offering were offered pursuant to our shelf registration statement
on Form S-3 (File 333-267211).
In connection with this
offering, on January 31, 2023, we entered into a placement agency agreement with Maxim, pursuant to which (i) Maxim agreed
to act as placement agent on a “best efforts” basis in connection with the offering and (ii) we agreed to pay Maxim
a fee equal to 8.0% of the gross proceeds raised in the offering.
On February 3,
2023, we closed the offering, raising gross proceeds of approximately $6.2 million, before deducting placement agent fees and other offering
expenses payable by us.
December 2022 Offering
On November 29,
2022, we entered into a securities purchase agreement with certain investors pursuant to which we agreed to issue and sell an aggregate
of 504,000 units and 36,000 pre-funded units at an effective public offering price of $14.00 per Unit. Each unit consisted of (i) one
share of our Common Stock, (ii) one Series A warrant, and (iii) one Series B warrant, with each Series A warrant
and Series B warrant being exercisable from time to time for one share of our Common Stock at an exercise price of $14.00 per share.
Each pre-funded unit consisted of (i) one pre-funded warrant, with each such pre-funded warrant being exercisable from time to time
for one share of our Common Stock, (ii) one Series A warrant and (iii) one Series B warrant.
In connection with this
offering, on November 29, 2022, we entered into a placement agency agreement with Maxim,
pursuant to which Maxim agreed to act as placement agent on a “best efforts” basis. We paid Maxim an aggregate fee equal
to 8.0% of the gross proceeds raised in this offering, and a non-accountable expense allowance equal to 1.0% of such gross proceeds.
We also reimbursed Maxim $100,000 for expenses in connection with this offering.
On December 1,
2022, we closed this offering, raising gross proceeds of approximately $7.6 million, before deducting placement agent fees and other
offering expenses payable by us.
Equity Distribution Agreement
On September 13, 2022, we, entered into
an equity distribution agreement (the “2022 Sales Agreement”), with Maxim, which was amended in November 2022, pursuant
to which we may issue and sell shares of our Common Stock having an aggregate offering price of up to $4,000,000 from time to time through
Maxim. Subject to the terms and conditions of the 2022 Sales Agreement, Maxim will use its commercially reasonable efforts to sell the
shares of our Common Stock from time to time, based upon its instructions (including any price, time or size limits or other parameters
or conditions that we may impose). We pay to Maxim a cash commission of up to 3.0% of the gross proceeds from the sale of any shares
of Common Stock by Maxim under the 2022 Sales Agreement. We also granted Maxim, the right of first refusal (the “ROFR”) during
the term of the 2022 Sales Agreement to act as sole manager or sole placement agent in any and all future private or public equity offerings
for the period commencing on the date hereof and ending on the earlier of (a) twelve (12) months from the date of execution of the
2022 Sales Agreement or (b) ninety (90) days following the effective date of the termination of the 2022 Sales Agreement. The ROFR
shall be subject to FINRA Rule 5110(g)(5)(B), including that the ROFR may be terminated by us for “cause,” which shall
include (i) the placement agent’s material failure to provide the services contemplated in the placement agency agreement,
and (ii) our exercise of our right of “termination for cause” eliminates any obligations with respect to the payment
of any termination fee or provision of any ROFR. On January 30, 2023, we and Maxim agreed to terminate the 2022 Sales Agreement,
effective the same day.
August 2022 Private Placement
Maxim served as the sole placement agent for
us in connection with a private placement offering of a senior secured convertible note and a warrant in August 2022 (the “August 2022
Private Placement”), and we entered into a placement agency agreement with Maxim (the “August 2022 Placement Agency
Agreement”), in connection with such offering, pursuant to which we paid Maxim a fee of $240,000 and issued to Maxim a warrant
to purchase up to an aggregate of 1,944 shares of Common Stock at an exercise price of $99.70 per share (the “August 2022
PA Warrants”). The form of August 2022 PA Warrant was filed as Exhibit 4.3 to our Current Report on Form 8-K that
we filed with the SEC on August 19, 2022. The August 2022 PA Warrants are exercisable at any time on or after the six-month
anniversary of the closing date of such private placement and will expire on the fifth (5th) anniversary of its date of issuance, is
subject to 4.99%/9.99% beneficial ownership limitations, and may be exercised on a cashless basis in the event that the shares of Common
Stock underlying such warrant are not covered by a registration statement. The August 2022 PA Warrants were deemed compensation
by FINRA for the offering and were therefore subject to a 180-day lock-up pursuant to FINRA Rule 5110(e)(1)(A). As a result, the
placement agent (or permitted assignees under FINRA Rule 5110(e)(2)) will not sell, transfer, assign, pledge, or hypothecate these
warrants or the securities underlying these warrants, nor will they engage in any hedging, short sale, derivative, put, or call transaction
that would result in the effective economic disposition of the warrants or the underlying securities for a period of 180 days following
the commencement of sales of the securities issued in the August 2022 Private Placement.
In addition, the August 2022 PA Warrants
include a registration rights provision granting Maxim the same registration rights granted to the investor in the August 2022 Private
Placement whereby we agreed to promptly, but no later than November 13, 2022, file with the SEC a registration statement on Form S-1
or Form S-3 covering the resale of all certain securities issued in the August 2022 Private Placement, including the shares
of Common Stock issuable upon exercise of the August 2022 PA Warrants (the “PA Resale Registration Statement”), and
to ensure such PA Resale Registration Statement is declared effective no later than 180 days following the closing date of the August 2022
Private Placement and to grant certain piggyback registration rights. We filed the PA Resale Registration Statement with the SEC on November 7,
2022, which was declared effective on November 18, 2022. In addition, the warrant, as amended provides that the piggyback registration
rights provided will not be greater than seven years from the commencement of sales of the securities issued in the August 2022
Private Placement in compliance with FINRA Rule 5110(g)(8)(D). We will bear all fees and expenses attendant to registering the securities
issuable on exercise of the August 2022 PA Warrants other than underwriting commissions incurred and payable by the holders. The
exercise price and number of shares issuable upon exercise of the August 2022 PA Warrants may be adjusted in certain circumstances
including in the event of a stock dividend or our recapitalization, reorganization, merger or consolidation. However, the warrant exercise
price or underlying shares will not be adjusted for issuances of shares of Common Stock at a price below the warrant exercise price.
Pursuant to Rule 5110(e) the warrant as amended provides it may not sold, transferred, assigned or hypothecated or be the subject
of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of the warrant
and/or the shares of Common Stock underlying such warrant, for a period of 180 days after the commencement of sales of the securities
except the transfer of any security (i) by operation of law or by reason of reorganization of the Company, (ii) to any FINRA
member firm participating in the offering and the officers or partners thereof, if all securities so transferred remain subject to the
lock-up restriction described therein for the remainder of the time period, (iii) if the aggregate amount of securities of our company
held by the holder or related person do not exceed 1% of the securities being offered, (iv) the exercise or conversion of any security,
if all securities received remain subject to the lock-up restriction for the remainder of the 180-day lock-up period.
In addition, we also agreed to (i) grant
Maxim a nine-month right of first refusal following the consummation of the August 2022 Private Placement to act as sole book-running
manager, sole underwriter or sole placement agent in connection with a subsequent private placement or any other capital raising equity
or equity-linked securities using an underwriter or placement agent, and (ii) grant Maxim the same cash fees and warrants with respect
to any public or private offering or other financing or capital raising transaction consummated within 12 months of the termination of
the August 2022 Placement Agency Agreement with any investor that was introduced to the Company by Maxim during such agreement’s
term.
Solicitation Agent
Maxim provided services as the exclusive solicitation
agent, pursuant to the terms of an engagement letter, dated January 15, 2021 (the “Solicitation Agreement”). Pursuant
to the Solicitation Agreement, the Company agreed to pay Maxim a cash fee equal to $197,684, which is equal to 7% of the total net proceeds
received from the exercise of certain warrant. In addition, pursuant to the Solicitation Agreement, the Company granted Maxim a right
of first refusal, for a period of 280 days from the date that these warrants were exercised, to act as lead manager or lead placement
agent in any and all future private or public equity offerings conducted by us.
Transfer Agent and Registrar; Warrant Agent
The transfer agent and registrar for our Common
Stock, and the Warrant Agent for the Warrants and Pre-Funded Warrants is VStock Transfer,
LLC, whose address is 18 Lafayette Place, Woodmere, NY 11598 and telephone number is (212) 828-8436.
Listing
Our Common Stock is traded on Nasdaq under the symbol “WISA.”
There is no established trading market for the
Units, Pre-Funded Units, Warrants or the Pre-Funded Warrants, and we do not expect a market to develop. In addition, we do not intend
to list the Warrants or the Pre-Funded Warrants on Nasdaq or any other national securities exchange or any other nationally recognized
trading system.
Selling Restrictions
Other than in the United States, no action has
been taken by us or the placement agents that would permit a public offering of the securities offered by this prospectus in any jurisdiction
where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly,
nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities
be distributed or published, in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and
regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe
any restrictions relating to this offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell
or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation
is unlawful.
Australia.
No placement document, prospectus, product disclosure statement or other disclosure document has been lodged with the Australian Securities
and Investments Commission (ASIC), in relation to the offering.
This prospectus does not constitute a prospectus,
product disclosure statement or other disclosure document under the Corporations Act 2001 (the Corporations Act) and does not purport
to include the information required for a prospectus, product disclosure statement or other disclosure document under the Corporations
Act.
Any offer in Australia of the securities may
only be made to persons (the Exempt Investors) who are “sophisticated investors” (within the meaning of section 708(8) of
the Corporations Act), “professional investors” (within the meaning of section 708(11) of the Corporations Act) or otherwise
pursuant to one or more exemptions contained in section 708 of the Corporations Act so that it is lawful to offer the securities without
disclosure to investors under Chapter 6D of the Corporations Act.
The securities applied for by Exempt Investors
in Australia must not be offered for sale in Australia in the period of 12 months after the date of allotment under the offering,
except in circumstances where disclosure to investors under Chapter 6D of the Corporations Act would not be required pursuant to an exemption
under section 708 of the Corporations Act or otherwise or where the offer is pursuant to a disclosure document which complies with Chapter
6D of the Corporations Act. Any person acquiring securities must observe such Australian on-sale restrictions.
This prospectus contains general information
only and does not take account of the investment objectives, financial situation or particular needs of any particular person. It does
not contain any securities recommendations or financial product advice. Before making an investment decision, investors need to consider
whether the information in this prospectus is appropriate to their needs, objectives and circumstances, and, if necessary, seek expert
advice on those matters.
Brazil. The
offer of securities described in this prospectus will not be carried out by means that would constitute a public offering in Brazil under
Law No. 6,385, of December 7, 1976, as amended, under the CVM Rule (Instrução) No. 400, of December 29,
2003. The offer and sale of the securities have not been and will not be registered with the Comissão de Valores Móbilearios
in Brazil. The securities have not been offered or sold, and will not be offered or sold in Brazil, except in circumstances that do not
constitute a public offering or distribution under Brazilian laws and regulations.
Canada.
The securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors,
as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario),
and are permitted clients, as defined in National Instrument 31 103 Registration Requirements, Exemptions and Ongoing Registrant
Obligations. Any resale of the securities must be made in accordance with an exemption from, or in a transaction not subject to,
the prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or
territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto)
contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit
prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable
provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with
a legal advisor.
Pursuant to section 3A.3 of National Instrument
33 105 Underwriting Conflicts (NI 33 105), the underwriters are not required to comply with the disclosure requirements
of NI 33-105 regarding underwriters’ conflicts of interest in connection with this offering.
Cayman
Islands. No invitation, whether directly or indirectly, may be made to the public in the Cayman Islands to subscribe
for our securities.
European
Economic Area. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive
(each, a “Relevant Member State”) an offer to the public of any securities may not be made in that Relevant Member State,
except that an offer to the public in that Relevant Member State of any securities may be made at any time under the following exemptions
under the Prospectus Directive, if they have been implemented in that Relevant Member State:
|
· |
to any legal entity which
is a qualified investor as defined in the Prospectus Directive; |
|
|
|
|
· |
to fewer than
100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal
persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject
to obtaining the prior consent of the representatives for any such offer; or |
|
|
|
|
· |
in any other circumstances
falling within Article 3(2) of the Prospectus Directive, provided that no such offer of securities shall result in a requirement
for the publication by us or any placement agent of a prospectus pursuant to Article 3 of the Prospectus Directive. |
For the purposes of this provision, the expression
an “offer to the public” in relation to any securities in any Relevant Member State means the communication in any form and
by any means of sufficient information on the terms of the offer and any securities to be offered so as to enable an investor to decide
to purchase any securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that
Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010
PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the
Relevant Member State, and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.
Hong
Kong. The contents of this prospectus have not been reviewed by any regulatory authority in Hong Kong. You are advised
to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this prospectus, you should obtain
independent professional advice. Please note that (i) our shares may not be offered or sold in Hong Kong, by means of this prospectus
or any document other than to “professional investors” within the meaning of Part I of Schedule 1 of the Securities
and Futures Ordinance (Cap.571, Laws of Hong Kong) (SFO) and any rules made thereunder, or in other circumstances which do not result
in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong) (CO) or which
do not constitute an offer or invitation to the public for the purpose of the CO or the SFO, and (ii) no advertisement, invitation
or document relating to our shares may be issued or may be in the possession of any person for the purpose of issue (in each case whether
in Hong Kong or elsewhere) which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong
(except if permitted to do so under the securities laws of Hong Kong) other than with respect to the shares which are or are intended
to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the SFO and
any rules made thereunder.
Israel.
This document does not constitute a prospectus under the Israeli Securities Law, 5728-1968, or the Securities Law, and has not been filed
with or approved by the Israel Securities Authority. In the State of Israel, this document is being distributed only to, and is directed
only at, and any offer of the shares is directed only at, investors listed in the first addendum, or the Addendum, to the Israeli Securities
Law, consisting primarily of joint investment in trust funds, provident funds, insurance companies, banks, portfolio managers, investment
advisors, members of the Tel Aviv Stock Exchange, underwriters, venture capital funds, entities with equity in excess of NIS 50 million
and “qualified individuals”, each as defined in the Addendum (as it may be amended from time to time), collectively referred
to as qualified investors (in each case purchasing for their own account or, where permitted under the Addendum, for the accounts of
their clients who are investors listed in the Addendum). Qualified investors will be required to submit written confirmation that they
fall within the scope of the Addendum, are aware of the meaning of same and agree to it.
The
People’s Republic of China. This prospectus may not be circulated or distributed in the PRC and the shares
may not be offered or sold, and will not offer or sell to any person for re-offering or resale directly or indirectly to any resident
of the PRC except pursuant to applicable laws, rules and regulations of the PRC. For the purpose of this paragraph only, the PRC
does not include Taiwan and the special administrative regions of Hong Kong and Macau.
Switzerland.
The securities may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (the SIX) or on any other
stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards
for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses
under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in
Switzerland. Neither this document nor any other offering or marketing material relating to the securities or the offering may be publicly
distributed or otherwise made publicly available in Switzerland.
Neither this document nor any other offering
or marketing material relating to the offering, or the securities have been or will be filed with or approved by any Swiss regulatory
authority. In particular, this document will not be filed with, and the offer of securities will not be supervised by, the Swiss Financial
Market Supervisory Authority FINMA, and the offer of securities has not been and will not be authorized under the Swiss Federal Act on
Collective Investment Schemes (CISA). Accordingly, no public distribution, offering or advertising, as defined in CISA, its implementing
ordinances and notices, and no distribution to any non-qualified investor, as defined in CISA, its implementing ordinances and notices,
shall be undertaken in or from Switzerland, and the investor protection afforded to acquirers of interests in collective investment schemes
under CISA does not extend to acquirers of securities.
Taiwan.
The securities have not been and will not be registered with the Financial Supervisory Commission of Taiwan pursuant to relevant securities
laws and regulations and may not be sold, issued or offered within Taiwan through a public offering or in circumstances which constitutes
an offer within the meaning of the Securities and Exchange Act of Taiwan that requires a registration or approval of the Financial Supervisory
Commission of Taiwan. No person or entity in Taiwan has been authorized to offer, sell, give advice regarding or otherwise intermediate
the offering and sale of the securities in Taiwan.
United Kingdom.
This prospectus has only been communicated or caused to have been communicated and will only be communicated or caused to be communicated
as an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and
Markets Act of 2000, or the FSMA) as received in connection with the issue or sale of our Common Stock in circumstances in which Section 21(1) of
the FSMA does not apply to us. All applicable provisions of the FSMA will be complied with in respect to anything done in relation to
our Common Stock in, from or otherwise involving the United Kingdom.
PRINCIPAL
STOCKHOLDERS
The following table sets forth, as of February
2, 2024, information regarding beneficial ownership of our Common Stock by:
· |
each person, or group of
affiliated persons, who is known by us to beneficially own more than 5% of our Common Stock; |
· |
each of our named executive
officers; |
· |
each of our directors;
and |
· |
all of our executive officers
and directors as a group. |
The percentage ownership information shown
in the table prior to this offering is based upon 34,562,545 shares of Common Stock outstanding as of February 2, 2024. The percentage
ownership information shown in the table after this offering is based upon 134,562,545 shares of Common Stock outstanding as of such
date, after giving effect to the sale of all 100,000,000 Units offered pursuant to this prospectus (based on the assumed public offering
price of $0.10 per Unit, the closing sale price of our Common Stock on Nasdaq on January 29, 2024, and assuming no sale of any Pre-Funded
Units and no exercise of any Warrants issued in connection with this offering).
Beneficial ownership is determined according
to the rules of the SEC and generally means that a person has beneficial ownership of a security if he, she or it possesses sole or shared
voting or investment power of that security, including securities that are exercisable for shares of Common Stock within sixty (60) days
of February 2, 2024. Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the persons
named in the table below have sole voting and investment power with respect to all shares of Common Stock shown that they beneficially
own, subject to community property laws where applicable.
For purposes of computing the percentage of outstanding shares
of our Common Stock held by each person or group of persons named above, any shares of Common Stock that such person or persons has the
right to acquire within sixty (60) days of February 2, 2024 is deemed to be outstanding, but is not deemed to be outstanding for the
purpose of computing the percentage ownership of any other person. The inclusion herein of any shares of Common Stock listed as beneficially
owned does not constitute an admission of beneficial ownership.
Except as otherwise noted below, the address
for persons listed in the table is c/o WiSA Technologies, Inc., 15268 NW Greenbrier Pkwy, Beaverton, Oregon 97006.
|
|
Shares Beneficially
Owned Prior to this Offering |
|
|
Shares Beneficially Owned
After this Offering |
|
Name of
Beneficial |
|
Common Stock |
|
|
Series B
Preferred
Stock |
|
|
% Total
Voting |
|
|
Common Stock |
|
|
Series B
Preferred
Stock |
|
|
% Total
Voting |
|
Owner |
|
Shares |
|
|
% |
|
|
Shares |
|
|
% |
|
|
Power(1) |
|
|
Shares |
|
|
% |
|
|
Shares |
|
|
% |
|
|
Power(1) |
|
Brett Moyer(2) |
|
|
74,509 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
|
* |
|
|
|
74,509 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
* |
|
Gary Williams(3) |
|
|
48,931 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
|
* |
|
|
|
48,931 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
* |
|
Lisa Cummins(4) |
|
|
11,364 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
|
* |
|
|
|
11,364 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
* |
|
Dr. Jeffrey M. Gilbert(5) |
|
|
11,376 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
|
* |
|
|
|
11,376 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
* |
|
David Howitt(6) |
|
|
11,129 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
|
* |
|
|
|
11,129 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
* |
|
Helge Kristensen(7) |
|
|
11,449 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
|
* |
|
|
|
11,449 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
* |
|
Sriram Peruvemba(8) |
|
|
11,336 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
|
* |
|
|
|
11,336 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
* |
|
Robert Tobias(9) |
|
|
11,364 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
|
* |
|
|
|
11,364 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
* |
|
Wendy Wilson(10) |
|
|
11,222 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
|
* |
|
|
|
11,222 |
|
|
|
* |
|
|
|
- |
|
|
|
- |
|
|
* |
|
All directors and executive officers as a group (9 persons) (11) |
|
|
202,680 |
|
|
|
0.1 |
% |
|
|
- |
|
|
|
- |
|
|
|
0.1 |
% |
|
|
202,680 |
|
|
|
[__] |
% |
|
|
- |
|
|
|
- |
|
|
[__] |
% |
* Less than 1.0%
(1) |
|
Percentage of total voting power represents voting power with respect to all shares of our Common Stock. Holders of Common Stock are entitled to one (1) vote per share for each share of Common Stock held by them. The holders of our Common Stock are entitled to one vote per share. The holders of our Series B Preferred Stock have no voting rights. |
|
|
|
(2) |
|
The number of shares of Common Stock beneficially owned before the offering includes (i) 833 RSAs granted under the LTIP, which vest on the third anniversary of March 15, 2021, so long as Mr. Moyer remains in the service of the Company on each such anniversary; (ii) 1,165 RSAs granted under the LTIP, which are scheduled to vest quarterly in equal installments for the period from March 15, 2024 to September 15, 2025, on each March 15th, June 15th, September 15th and December 15th, so long as Mr. Moyer remains in the service of the Company on each such date; (iii) 333 RSAs granted under the Company’s LTIP, which are scheduled to vest in equal installments on the second and third anniversaries of September 19, 2022, as long as Mr. Moyer remains in service of the Company on each such anniversary; and (iv) 62,475 RSAs granted under the 2018 LTIP, scheduled to vest in equal installments, commencing on May 15, 2024 and every six (6) months thereafter until May 15, 2026, so long as Mr. Moyer remains in the service of the Company on each such date. |
|
|
|
(3) |
|
The number of shares of Common Stock beneficially owned before the offering includes (i) 66 RSAs granted under the LTIP, which vest on the third anniversary of March 15, 2021, so long as Mr. Williams remains in the service of the Company on each such anniversary; (ii) 230 RSAs granted under the LTIP, which are scheduled to vest quarterly in equal installments for the period from March 15, 2024 to September 15, 2025, on each March 15th, June 15th, September 15th and December 15th, so long as Mr. Williams remains in the service of the Company on each such date; and (iii) 43,316 RSAs granted under the 2018 LTIP, scheduled to vest in equal installments, commencing on May 15, 2024 and every six (6) months thereafter until May 15, 2026, so long as Mr. Williams remains in the service of the Company on each such date. |
(4) |
|
The number of shares of Common Stock beneficially owned before the
offering includes (i) 33 RSAs granted under the LTIP, which vest on the third anniversary of March 15, 2021, so long as
Ms. Cummins remains in the service of the Company on each such anniversary; (ii) 56 RSAs granted under the LTIP, which
are scheduled to vest quarterly in equal installments for the period from September 15, 2023 to September 15, 2025, on
each September 15th, December 15th, March 15th and June 15th, so
long as Ms. Cummins remains in the service of the Company on each such date; and (iii) 9,163 RSAs granted under the 2018
LTIP, scheduled to vest in equal installments, commencing on November 15, 2023 and every six (6) months thereafter until
May 15, 2026, so long as Ms. Cummins remains in the service of the Company on each such date. |
|
|
|
(5) |
|
The number of shares of Common Stock beneficially owned before the
offering includes (i) 33 RSAs granted under the LTIP, which vest on third anniversary of March 15, 2021, so long as Dr. Gilbert
remains in the service of the Company on each such anniversary; (ii ) 56 RSAs granted under the LTIP, which are scheduled
to vest quarterly in equal installments for the period from September 15, 2023 to September 15, 2025, on each September 15th,
December 15th, March 15th and June 15th, so long as Dr. Gilbert remains in the
service of the Company on each such date; and (iii) 9,163 RSAs granted under the 2018 LTIP, scheduled to vest in equal installments,
commencing on November 15, 2023 and every six (6) months thereafter until May 15, 2026, so long as Dr. Gilbert
remains in the service of the Company on each such date. |
|
|
|
(6) |
|
The number of shares of Common Stock beneficially owned before the
offering includes (i) 56 RSAs granted under the LTIP, which are scheduled to vest quarterly in equal installments for the period
from September 15, 2023 to September 15, 2025, on each September 15th, December 15th, March 15th
and June 15th, so long as Mr. Howitt remains in the service of the Company on each such date; and (ii) 9,163
RSAs granted under the 2018 LTIP, scheduled to vest in equal installments, commencing on November 15, 2023 and every six (6) months
thereafter until May 15, 2026, so long as Mr. Howitt remains in the service of the Company on each such date. |
|
|
|
(7) |
|
The number of shares of Common Stock beneficially owned before the
offering includes (i) 33 RSAs granted under the LTIP, which vest on the third anniversary of March 15, 2021, so long as
Mr. Kristensen remains in the service of the Company on each such anniversary; (ii) 56 RSAs granted under the LTIP, which
are scheduled to vest quarterly in equal installments for the period from September 15, 2023 to September 15, 2025, on
each September 15th, December 15th, March 15th and June 15th, so
long as Mr. Kristensen remains in the service of the Company on each such date; and (iii) 9,163 RSAs granted under the
2018 LTIP, scheduled to vest in equal installments, commencing on November 15, 2023 and every six (6) months thereafter
until May 15, 2026, so long as Mr. Kristensen remains in the service of the Company on each such date. |
(8) |
|
The number of shares of Common Stock beneficially owned before the
offering includes (i) 33 RSAs granted under the LTIP, which vest on the third anniversaries of March 15, 2021, so long
as Mr. Peruvemba remains in the service of the Company on each such anniversary; (ii) 56 RSAs granted under the LTIP, which
are scheduled to vest quarterly in equal installments for the period from September 15, 2023 to September 15, 2025, on
each September 15th, December 15th, March 15th and June 15th, so
long as Mr. Peruvemba remains in the service of the Company on each such date; and (iii) 9,163 RSAs granted under the 2018
LTIP, scheduled to vest in equal installments, commencing on November 15, 2023 and every six (6) months thereafter until
May 15, 2026, so long as Mr. Peruvemba remains in the service of the Company on each such date. |
|
|
|
(9) |
|
The number of shares of Common Stock beneficially owned before the
offering includes (i) 33 RSAs granted under the LTIP, which vest on the third anniversary of March 15, 2021, so long as
Mr. Tobias remains in the service of the Company on each such date; (ii) 56 RSAs granted under the LTIP, which are scheduled
to vest quarterly in equal installments for the period from September 15, 2023 to September 15, 2025, on each September 15th,
December 15th, March 15th and June 15th, so long as Mr. Tobias remains in the
service of the Company on each such date; and (iii) 9,163 RSAs granted under the 2018 LTIP, scheduled to vest in equal installments,
commencing on November 15, 2023 and every six (6) months thereafter until May 15, 2026, so long as Mr. Tobias
remains in the service of the Company on each such date. |
|
|
|
(10) |
|
The number of shares of Common Stock beneficially owned before the
offering consists of (i) 33 RSAs granted under the LTIP, which vest on the third anniversaries of May 15, 2021, so long
as Ms. Wilson remains in the service of the Company on each such date; (ii) 56 RSAs granted under the LTIP, which are scheduled
to vest quarterly in equal installments for the period from September 15, 2023 to September 15, 2025, on each September 15th,
December 15th, March 15th and June 15th, so long as Ms. Wilson remains in the
service of the Company on each such date; and (iii) 9,163 RSAs granted under the 2018 LTIP, scheduled to vest in equal installments,
commencing on November 15, 2023 and every six (6) months thereafter until May 15, 2026, so long as Ms. Wilson
remains in the service of the Company on each such date. |
|
|
|
(11) |
|
See the information included in footnotes 2 through 10 above. |
DESCRIPTION
OF CAPITAL STOCK
General
The following description of our capital stock,
together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions
of the capital stock that we may offer under this prospectus, but is not complete. For the complete terms of our capital stock, please
refer to our certificate of incorporation, as amended from time to time, any certificate of designation for our preferred stock, and
our bylaws, as amended from time to time. The General Corporation Law of the State of Delaware (the “DGCL”) may also affect
the terms of our capital stock.
Authorized Capital
Stock
The Company is authorized to issue 220,000,000
shares of its capital stock consisting of (a) 200,000,000 shares of common stock, par value $0.0001 per share, and (b) 20,000,000 shares
of “blank check” preferred stock, par value $0.0001 per share. As of the date of this prospectus, there are 375,000 shares
designated as Series B Preferred Stock. As of February 2, 2024, there were 34,562,545 shares of our common stock issued and outstanding
and 62,657 shares of Series B Preferred Stock issued and outstanding.
Common Stock
Voting Rights
Each holder of our Common Stock is entitled to
one vote for each share on all matters submitted to a vote of the stockholders, including the election of directors. Under our bylaws,
our stockholders will not have cumulative voting rights. Because of this, the holders of a majority of the Common Stock entitled to vote
in any election of directors will be able elect all of the directors standing for election, if they should so choose.
Dividends
Subject to preferences that may be applicable
to any then-outstanding preferred stock, holders of our Common Stock will be entitled to receive ratably those dividends, if any, as
may be declared from time to time by the board of directors out of legally available funds. The right of holders of our Common Stock
to receive dividends is subject to the rights of holders of our Series B Preferred Stock to receive dividends pursuant
to the Series B COD to receive dividends pursuant to the Series B COD.
Liquidation
In the event of our liquidation, dissolution
or winding up, holders of Common Stock will be entitled to share ratably in the net assets legally available for distribution to stockholders
after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preference granted to the holders
of any then-outstanding preferred stock, including, without limitation, the liquidation preference granted to holders of our Series B
Preferred Stock pursuant to the Series B COD.
Rights and Preferences
Holders of Common Stock have no preemptive, conversion
or subscription rights and there are no redemption or sinking fund provisions applicable to our Common Stock. The rights, preferences
and privileges of the holders of Common Stock are subject to, and may be adversely affected by, the rights of the holders of any series
of preferred stock that we may designate in the future, including, without limitation, the rights granted to holders of our Series B
Preferred Stock pursuant to the Series B COD.
Preferred Stock
General
We are authorized to issue up to 20,000,000 shares
of “blank check” preferred stock, par value $0.0001 per share, of which 87,000 shares of Series B Preferred Stock
are presently issued and outstanding. Our Board has the authority, without further action by our stockholders, to issue shares of preferred
stock in one or more series, to establish from time to time the number of shares to be included in each such series, to fix the rights,
preferences and privileges of the shares of each wholly unissued series and any qualifications, limitations or restrictions thereon,
and to increase or decrease the number of shares any such series, but not below the number of shares of such series then outstanding.
Our Board may authorize the issuance of shares
of preferred stock with dividend, liquidation, voting, conversion or other rights that could adversely affect the voting power or other
rights of the holders of our common stock. The purpose of authorizing our Board to issue preferred stock and determine its rights and
preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing
flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying,
deferring or preventing a change in control of us and may adversely affect the market price of our common stock and the voting and other
rights of the holders of our common stock. It is not possible to state the actual effect of the issuance of any preferred stock on the
rights of holders of common stock until the board of directors determines the specific rights attached to that class of preferred stock.
Series B Preferred Stock
The following describes the material terms
of the Series B Preferred Stock. This is not a complete description and is subject to, and entirely qualified by reference to applicable
provisions of our Certificate of Incorporation, Bylaws and the Series B COD, which are included as exhibits to the registration
statement of which this prospectus forms a part, as well as the relevant portions of Delaware law.
Pursuant
to our Certificate of Incorporation, we are authorized to issue 20,000,000 shares
of our “blank-check” preferred stock, par value $0.0001 per share. As of the date of this prospectus, there are 375,000
shares designated as Series B Preferred Stock, pursuant to the Series B COD and 38,335 shares of Series B Preferred
Stock issued and outstanding.
In addition, subject to the limitations described
herein, we may issue additional preferred stock from time to time in one or more series, each with such designation, powers, preferences
and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions applicable to any
of those rights, including dividend rights, voting rights, conversion or exchange rights, terms of redemption and liquidation preferences,
as the Board (or a duly authorized committee of the Board) may determine prior to the time of such issuance.
Transfer Agent and Register
The transfer agent and register for the Series B
Preferred Stock is VStock Transfer, LLC (the “Transfer Agent”), whose address
is 18 Lafayette Place, Woodmere, NY 11598 and telephone number is (212) 828-8436.
Maturity
The Series B Preferred Stock matures on October 17, 2025.
Dividends
The Series B COD
provides that dividends on the Series B Preferred Stock shall be paid in-kind (“PIK dividends”) in additional shares
of Series B Preferred Stock based on the stated value of $100.00 per share at the annual dividend rate of 20% (the “Dividend
Rate”). The PIK dividends will be a one-time payment payable to holders of the Series B Preferred of record at the close of
business on October 17, 2024 (the “Dividend Record Date”). PIK dividends on each share of Series B Preferred Stock
shall be paid three business days after the Dividend Record Date in additional fully paid and nonassessable, registered shares of Series B
Preferred Stock in a number equal to the quotient obtained by dividing (A) the product obtained by multiplying (i) the Dividend
Rate and (ii) the stated value of $100.00 per share, by (B) $55.00, the public offering price per Unit (equal to $55.00).
Conversion
The Series B Preferred Stock is convertible
at any time at the option of the holder. Except as provided below, the Series B Preferred Stock is not convertible into or exchangeable
for any other securities or property.
Conversion at Option of Series B Preferred
Stock Holder
Each share of Series B
Preferred Stock is convertible at the option of the holder at any time into shares of our Common Stock at the Conversion Price of $0.4147,
which Conversion Price is subject to adjustment. The Conversion Price is subject to adjustment for: (i) the payment of stock dividends
or other distributions payable in Common Stock on the outstanding shares of our Common Stock, excluding the shares of Common Stock issuable
upon the conversion of the Series B Preferred Stock; and (ii) subdivisions and combinations (including by way of a reverse
stock split).
Series B Preferred
Stock holders shall effect conversions of the Series B Preferred Stock by providing us a conversion notice (a “Notice of Conversion”),
duly completed and executed. The Notice of Conversion must specify the number of shares of Series B Preferred Stock then held by
the holder and the number of such shares which the holder is converting. To effect conversions of shares of Series B Preferred Stock,
a holder shall not be required to surrender the certificate(s), if any, representing the shares of Series B Preferred Stock to us
unless all of the shares of Series B Preferred Stock represented thereby are so converted, in which case such holder shall deliver
the certificate representing such shares of Series B Preferred Stock promptly following the conversion date at issue. Shares of
Series B Preferred Stock converted into our shares of Common Stock shall be canceled and shall not be reissued.
If, at any time while
the Series B Preferred Stock is outstanding: we (A) pay a stock dividend or otherwise make a distribution or distributions
payable in shares of our Common Stock or any other Common Stock Equivalents (as defined in the Series B COD) (which, for avoidance
of doubt, shall not include any shares of Common Stock issued by us upon conversion of the Series B Preferred Stock, or payment
of a dividend on the Series B Preferred Stock) with respect to the then outstanding shares of Common Stock; (B) subdivide outstanding
shares of Common Stock into a larger number of shares; (C) combine (including by way of a reverse stock split) outstanding shares
of Common Stock into a smaller number of shares or (D) issue, in the event of a reclassification of shares of the Common Stock,
any shares of our capital stock, which we refer to collectively as the “Anti-Dilution Provisions”, then the Conversion Price
shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares)
outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately
after such event (excluding any treasury shares). Any adjustment made as a result of the Anti-Dilution Provisions shall become effective
immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision or combination. All calculations will be made to the nearest
cent or the nearest 1/100th of a share, as the case may be. For purposes of the Anti-Dilution Provisions, 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 any treasury shares) issued and outstanding. Whenever the Conversion Price is adjusted pursuant to any Anti-Dilution Provision,
we will promptly deliver to each holder of Series B Preferred Stock a notice setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment. Notwithstanding the foregoing in no event may the Conversion
Price be less than the par value per share of Series B Preferred Stock.
Pursuant to the Inducement
Agreements, the Holders agreed to a reduced exercise price of $35.72 per share of Series B Preferred Stock, while maintaining the original
fixed conversion price of $0.4147, upon the exercise of any Existing Warrants during the Inducement Period.
Obligations Absolute
Subject to holder’s
right to rescind a notice of conversion, our obligation to issue and deliver the shares of Common Stock upon conversion of Series B Preferred
Stock in accordance with its terms are absolute and unconditional, irrespective of any action or inaction by a holder to enforce the
same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce
the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such holder or any other
Person of any obligation to us or any violation or alleged violation of law by such holder or any other Person, and irrespective of any
other circumstance which might otherwise limit our obligation to such holder in connection with the issuance of such shares of Common
Stock. If we fail to deliver to a holder shares of Common Stock upon conversion by the Share Delivery Date (as defined in the Series
B COD) applicable to such conversion, we shall pay to such holder, in cash, as liquidated damages and not as a penalty, for each $250
of stated value of Series B Preferred Stock being converted, $2.50 per trading day (increasing to $5 per trading day on the third trading
day after the Share Delivery Date and increasing to $10 per trading day on the sixth trading day after the Share Delivery Date) for each
trading day after the Share Delivery Date until such Conversion Shares (as defined in the Series B COD) are delivered or Series B Preferred
Stock holder rescinds such conversion.
Buy-In on Failure to Timely Deliver Certificates
Upon Conversion
If we fail to deliver
to a holder the applicable certificate or certificates or to effect a delivery via DWAC, as applicable, by the Share Delivery Date (other
than a failure caused by incorrect or incomplete information provided by the holder to us), and if after such Share Delivery Date the
holder is required by its brokerage firm 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 such holder of the Conversion Shares which the holder
was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then we are obligated to (A) pay
in cash to the holder (in addition to any other remedies available to or elected by the holder) the amount by which (x) the holder’s
total purchase price (including any brokerage commissions) for the shares of Common Stock so purchased exceeds (y) the product of
(1) the aggregate number of shares of Common Stock that such holder was entitled to receive from the conversion at issue multiplied
by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage
commissions) and (B) at the option of the holder, either reissue (if surrendered) the shares of Series B Preferred Stock equal
to the number of shares of Series B Preferred Stock submitted for conversion or deliver to the holder the number of shares of Common
Stock that would have been issued if we had timely complied with our delivery requirements. For example, if a holder purchases shares
of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of shares of Series B
Preferred Stock with respect to which the actual sale price (including any brokerage commissions) giving rise to such purchase obligation
was a total of $10,000 under clause (A) of the immediately preceding sentence, we would be required to pay such holder $1,000. The
holder shall provide us written notice, within three trading days after the occurrence of a Buy-In, indicating the amounts payable to
such holder in respect of such Buy-In together with applicable confirmations and other evidence reasonably requested by us. 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 our failure to timely deliver certificates representing shares
of Common Stock upon conversion of the shares of Series B Preferred Stock as required pursuant to the terms hereof; provided,
however, that the holder shall not be entitled to both (i) require the reissuance of the shares of Series B Preferred Stock
submitted for conversion for which such conversion was not timely honored and (ii) receive the number of shares of Common Stock
that would have been issued if we had timely complied with its delivery requirements under the section entitled “Delivery of Certificate
or Electronic Issuance Upon Conversion.”
Reservation of Shares Issuable Upon Conversion
We have agreed that
we will at all times reserve and keep available out of our authorized and unissued shares of Common Stock for the sole purpose of issuance
upon conversion of the Series B Preferred Stock, free from preemptive rights or any other actual contingent purchase rights of persons
other than the holders of the Series B Preferred Stock, not less than such aggregate number of shares of the Common Stock as shall
be issuable upon the conversion of all outstanding shares of Series B Preferred Stock. We have further agreed that all shares of
Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid, nonassessable and free and
clear of all liens and other encumbrances.
Beneficial Ownership Limitation
Notwithstanding anything
herein to the contrary, we shall not effect any conversion of the Series B Preferred Stock, and a Series B Preferred Stock
holder shall not have the right to convert any portion of the Series B Preferred Stock, to the extent that, after giving effect
to the conversion set forth on the applicable Notice of Conversion, such Series B Preferred Stock holder (together with such Series B
Preferred Stock holder’s affiliates, and any persons acting as a group together with such Series B Preferred Stock holder
or any of such Series B Preferred Stock 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 such Series B Preferred Stock holder and its affiliates and Attribution Parties shall
include the number of shares of Common Stock issuable upon conversion of the Series B Preferred Stock with respect to which such
determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the
remaining, unconverted Series B Preferred Stock beneficially owned by such Series B Preferred Stock holder or any of its affiliates
or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other of our securities
subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, the Series B
Preferred Stock) beneficially owned by such Series B Preferred Stock holder or any of its affiliates or Attribution Parties. Except
as set forth in the preceding sentence, for purposes of this section, beneficial ownership shall be calculated in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this section
applies, the determination of whether the Series B Preferred Stock is convertible (in relation to other securities owned by such
Series B Preferred Stock holder together with any affiliates and Attribution Parties) and of how many shares of Series B Preferred
Stock are convertible shall be in the sole discretion of such Series B Preferred Stock holder, and the submission of a Notice of
Conversion shall be deemed to be such Series B Preferred Stock holder’s determination of whether the shares of Series B
Preferred Stock may be converted (in relation to other securities owned by such Series B Preferred Stock holder together with any
affiliates and Attribution Parties) and how many shares of the Series B Preferred Stock are convertible, in each case subject to
the Beneficial Ownership Limitation. To ensure compliance with this restriction, each Series B Preferred Stock holder will be deemed
to represent to us each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set
forth in this section and we shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination
as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder. For purposes of this section, in determining the number of outstanding shares of Common
Stock, a Series B Preferred Stock holder may rely on the number of outstanding shares of Common Stock as stated in the most recent
of the following: (i) our most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more
recent public announcement by us or (iii) a more recent written notice by us or the Transfer Agent setting forth the number of shares
of Common Stock outstanding. Upon the written or oral request (which may be via email) of a Series B Preferred Stock holder, we
within one (1) trading day confirm orally and in writing to such Series B Preferred Stock 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 our securities, including the Series B Preferred Stock, by such Series B Preferred Stock 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 a Series B Preferred Stock holder prior to the
issuance of any shares of Series B Preferred Stock, 9.99%) of the number of shares of the Common Stock outstanding immediately after
giving effect to the issuance of shares of Common Stock issuable upon conversion of Series B Preferred Stock held by the applicable
Series B Preferred Stock holder. A Series B Preferred Stock holder, upon notice to us, may increase or decrease the Beneficial
Ownership Limitation provisions of this section applicable to its Series B Preferred Stock; provided, that the Beneficial Ownership
Limitation shall not in any event exceed 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of shares of Common Stock upon conversion of this Series B Preferred Stock held by the Series B Preferred Stock
holder and the provisions of this section shall continue to apply. Any such increase will not be effective until the 61st day after such
notice is delivered to us and shall only apply to such Series B Preferred Stock holder and no other Series B Preferred Stock
holder. The Beneficial Ownership Limitation shall not be waived by us or the Series B Preferred Stock holder and upon issuance of
the Series B Preferred Stock by us, and the purchase thereof by the Series B Preferred Stock holder, each of us and the Series B
Preferred Stock holder shall be deemed to acknowledge such limitation and to agree not to waive it. The provisions of this section shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this section to correct this section (or
any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make
changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this subsection
shall apply to a successor Series B Preferred Stock holder of Series B Preferred Stock.
Subsequent Rights Offerings
If at any time we grant,
issue or sell any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to
the record holders of Common Stock or any class thereof (the “Purchase Rights”), then the Series B Preferred Stock holder
will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Series B
Preferred Stock holder could have acquired if the Series B Preferred Stock holder had held the number of shares of Common Stock
acquirable upon complete conversion of such Series B Preferred Stock holder’s (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 Series B Preferred Stock holder’s right to participate in any such Purchase Right would result in the Series B Preferred
Stock holder exceeding the Beneficial Ownership Limitation, then the Series B Preferred Stock 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 Series B Preferred Stock holder until such time,
if ever, as its right thereto would not result in the Series B Preferred Stock holder exceeding the Beneficial Ownership Limitation).
Pro Rata Distributions
During such time as
the Series B Preferred Stock is outstanding, if we declare or make any dividend or other distribution of our assets (or rights to
acquire its assets) to holders of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution
of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme
of arrangement or other similar transaction) ( a “Distribution”), then, in each such case, the Series B Preferred Stock
holder shall be entitled to participate in such Distribution to the same extent that the Series B Preferred Stock holder would have
participated therein if the Series B Preferred Stock holder had held the number of shares of Common Stock acquirable upon complete
conversion of the Series B Preferred Stock (without regard to any limitations on conversion 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 our Common Stock are to be determined for the participation in such Distribution
(provided, however, that, to the extent that the Series B Preferred Stock holder’s right to participate in any such Distribution
would result in the Series B Preferred Stock holder exceeding the Beneficial Ownership Limitation, then the Series B Preferred
Stock 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 Series B Preferred Stock holder until such time, if ever, as its right thereto would not result in the Series B
Preferred Stock holder exceeding the Beneficial Ownership Limitation).
Fundamental Transactions
In the event of a Fundamental Transaction (as
defined in the Series B COD), and generally including any reorganization, recapitalization or reclassification of our Common Stock,
the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger with or
into another person, or the acquisition of more than 50% of our outstanding Common Stock, the holders of the Series B Preferred
Stock will be entitled to receive upon conversion of the Series B Preferred Stock the kind and amount of securities, cash or other
property that the holders would have received had they converted the Series B Preferred Stock immediately prior to such Fundamental
Transaction (without regard to the beneficial ownership limitation referred to above).
Mandatory Redemption
If any shares of Series B Preferred Stock
are outstanding at the end of the two (2) year term, then we shall promptly redeem all of such outstanding shares of Series B
Preferred Stock on a pro rata basis among all of the Series B Preferred Stock holder commencing on the two-year anniversary of October 17,
2023 in cash at a price per Series B Preferred Share equal to the sum of (x) 100% of the stated value per share of the
Series B Preferred Stock plus (y) all other amounts due in respect of the Series B Preferred Stock (if any). If on the
Mandatory Redemption Date (as defined in the Series B COD), Delaware law governing distributions to stockholders prevents the Company
from redeeming all shares of Series B Preferred Stock to be redeemed, then the Corporation shall, provided there is no prohibition
under Delaware law, redeem the Series B Preferred Stock by paying to the Series B Preferred Stock holder the unpaid cash redemption
payment in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock equal in number to the quotient obtained
by dividing such unpaid amount by the closing price of the Common Stock on the Trading Market on the Mandatory Redemption Date.
Limited Voting Rights
Series B Preferred
Stock holders do not have any voting rights, except as described below or as otherwise required by law.
In any matter in which
the Series B Preferred Stock may vote (as expressly provided herein or as may be required by law), each share of Series B Preferred
Stock is entitled to one vote per share. So long as any shares of Series B Preferred Stock remain outstanding, the Company will
not, without the consent or the affirmative vote of a majority of the outstanding shares of Series B Preferred Stock, given in person
or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose: (i) alter or change adversely
the powers, preferences or rights given to the Series B Preferred Stock or alter or amend adversely the Series B CODs; (ii) increase
the number of authorized shares of Series B Preferred Stock; or (iii) enter into any agreement with respect to any of the foregoing.
The rules and procedures
for calling and conducting any meeting of the holders of the Series B Preferred Stock (including, without limitation, the fixing
of a record date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written consents and
any other aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board of Director (or
a duly authorized committee of the Board of Directors), in its discretion, may adopt from time to time, which rules and procedures
shall conform to the requirements of the Certificate of Incorporation, Bylaws, applicable law and any national securities exchange or
other trading facility on which the Series B Preferred Stock may be listed or traded at the time.
Series B Preferred
Stock holders do not have any voting rights with respect to, and the consent of the holders of the Series B Preferred Stock is not
required for, the taking of any corporate action, including any merger or consolidation involving the Company or a sale of all or substantially
all of the Company’s assets, regardless of the effect that such merger, consolidation or sale may have upon the powers, preferences,
voting power or other rights or privileges of the Series B Preferred Stock, except as described above.
No Preemptive Rights
No holders of the Series B Preferred Stock
will, as holders of Series B Preferred Stock, have any preemptive rights to purchase or subscribe for Common Stock or any other
security.
Exclusion of Other Rights
The shares of the Series B Preferred Stock
do not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations
or restrictions thereof, other than as set forth in the Series B COD or in our Certificate of Incorporation.
Registration; Transfer
Pursuant to the terms
of the Series B COD, the Company is obligated to maintain an effective registration statement covering: (a) the issuance of
shares of Common Stock issuable upon conversion of the Series B Preferred Stock and (b) the issuance of additional shares of
Series B Preferred Stock pursuant to our obligation to pay PIK dividends, in each case, until such time as no Series B Preferred
Stock (and no Warrants exercisable for shares of Series B Preferred Stock) remain outstanding, unless there is available an exemption
from, or a transaction not subject to, the registration requirements of the Securities Act that covers the issuance of the
Series B Preferred Stock and the shares of Common Stock issuable upon conversion of such shares of Series B Preferred Stock.
Book-Entry Procedures
DTC acts as securities
depositary for the Series B Preferred Stock. With respect to the Series B Preferred Stock, we have issued one fully registered
global securities certificates in the name of DTC or DTC’s nominee. These certificates represent the total aggregate number of
shares of Series B Preferred Stock.
Title to book-entry
interests in the Series B Preferred Stock pass by book-entry registration of the transfer within the records of DTC in accordance
with its procedures. Book-entry interests in the securities may be transferred within DTC in accordance with procedures established for
these purposes by DTC. Each person owning a beneficial interest in shares of the Series B Preferred Stock must rely on the procedures
of DTC and the participant through which such person owns its interest to exercise its rights as a holder of the Series B Preferred
Stock. DTC has advised us that it is a limited-purpose trust company organized under the New York Banking Law, a member of the Federal
Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing
agency” registered under the provisions of Section 17A of the Exchange Act. DTC holds securities that its participants (“Direct
Participants”) deposit with DTC. DTC also facilitates the settlement among Direct Participants of securities transactions, such
as transfers and pledges in deposited securities through electronic computerized book-entry changes in Direct Participants’ accounts,
thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers,
banks, trust companies, clearing corporations, and certain other organizations. Access to the DTC system is also available to others
such as securities brokers and dealers, including the Placement Agent, banks and trust companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or indirectly (“Indirect Participants”). The rules applicable
to DTC and its Direct and Indirect Participants are on file with the SEC.
Series B Preferred
holder’s beneficial ownership interests are recorded on the Direct Participants and Indirect Participants’ records, but DTC
has no knowledge of an individual’s ownership. DTC’s records reflect only the identity of the Direct Participants to whose
accounts shares of Series B Preferred Stock are credited.
Transfers of ownership
interests held through Direct Participants and Indirect Participants will be accomplished by entries on the books of Direct Participants
and Indirect Participants acting on behalf of the beneficial owners.
The laws of some states
may require that specified purchasers of securities take physical delivery of shares of Series B Preferred Stock in definitive form.
These laws may impair the ability to transfer beneficial interests in the global certificates representing the Series B Preferred
Stock.
Conveyance of notices
and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to beneficial owners are to be governed by arrangements among them, subject to any statutory or regulatory requirements
as may be in effect from time to time.
In the event that we
request any action of the holders, or an owner of a beneficial interest in a global security, desires to take any action that a holder
is entitled to take under our Certificate of Incorporation (including the Certificate of Designations designating the Series B Preferred
Stock), DTC would authorize the Direct Participants holding the relevant shares to take such action, and those Direct Participants and
any Indirect Participants would authorize beneficial owners owning through those Direct Participants and Indirect Participants to take
such action or would otherwise act upon the instructions of beneficial owners owning through them.
Any redemption notices
with respect to the Series B Preferred Stock will be sent to DTC or its nominee. If less than all of the outstanding shares of Series B
Preferred Stock are being redeemed, DTC will reduce each Direct Participant’s holdings of shares of Series B Preferred Stock
in accordance with its procedures.
In those instances where
a vote is required, neither DTC nor its nominee will consent or vote with respect to the shares of Series B Preferred Stock. Under
its usual procedures, DTC would mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns DTC’s
or its nominee’s consenting or voting rights to those Direct Participants whose accounts the shares of Series B Preferred
Stock are credited to on the record date, which are identified in a listing attached to the omnibus proxy.
Dividends on the Series B
Preferred Stock are made directly to DTC (or its successor, if applicable). DTC’s practice is to credit participants’ accounts
on the relevant payment date in accordance with their respective holdings shown on DTC’s records unless DTC has reason to believe
that it will not receive payment on that payment date.
Payments by Direct Participants
and Indirect Participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or registered in “street name.” These payments will be the responsibility
of the participant and not of DTC, us or any agent of ours. DTC may discontinue providing its services as securities depositary with
respect to the Series B Preferred Stock at any time by giving reasonable notice to us. Additionally, we may decide to discontinue
the book-entry only system of transfers with respect to the Series B Preferred Stock. In that event, we will print and deliver certificates
in fully registered form for the Series B Preferred Stock. If DTC notifies us that it is unwilling to continue as securities depositary,
or it is unable to continue or ceases to be a clearing agency registered under the Exchange Act and a successor depositary
is not appointed by us within 90 days after receiving such notice or becoming aware that DTC is no longer so registered, we will issue
the Series B Preferred Stock in definitive form, at our expense, upon registration of transfer of, or in exchange for, such global
security.
According to DTC, the
foregoing information with respect to DTC has been provided to the financial community for informational purposes only and is not intended
to serve as a representation, warranty or contract modification of any kind.
Common Stock Purchase Warrants
As of February 2, 2024, we had common stock
purchase warrants to purchase up to 43,258,183 shares of our Common Stock outstanding with a weighted average exercise price and remaining
life in years of $0.65 and 4.9, respectively. The exercise price of such warrants is subject to adjustment upon certain events, such
as stock splits, combinations, dividends, distributions, reclassifications, mergers or other corporate change and dilutive issuances.
The exercise price of each New Warrant and each 2024 Bridge Warrant will be reset on the sixth (6th) trading day following the date the
next reverse stock split of shares of Common Stock is effected to the lower of (a) the exercise price of the New Warrants or the 2024
Bridge Warrants, as applicable, then in effect after giving effect to such Reverse Stock Split and (b) the lowest VWAP (as defined in
the New Warrants or the 2024 Bridge Warrants, as applicable) of the Common Stock in the five (5) trading days immediately prior to such
date.
Series B Preferred Warrants
As of February 2, 2024, we had 83,065
Series B Preferred Warrants outstanding, with each Series B Preferred Warrant exercisable for one share of Series B Preferred Stock.
The Series B Preferred Warrants are immediately exercisable, each with an exercise price of $55.00 and expire on October 17, 2025.
Pursuant to the Inducement Agreements, if any Series B Preferred Warrant holder exercises Series B Preferred Warrants in accordance
therewith, such Series B Preferred Warrants will be exercisable at a per share exercise price equal to $35.72.
Anti-Takeover Effects of Provisions of the DGCL and our Certificate
of Incorporation and Bylaws
Anti-Takeover Statute
We are subject to Section 203 of the Delaware
General Corporation Law, which generally prohibits a publicly held Delaware corporation from engaging in any business combination with
any interested stockholder for a period of three years after the date that such stockholder became an interested stockholder, with the
following exceptions:
|
● |
before such date, the board
of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming
an interested stockholder; |
|
● |
upon completion of the
transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of
the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes of determining the voting
stock outstanding, but not the outstanding voting stock owned by the interested stockholder, those shares owned (1) by persons
who are directors and also officers and (2) employee stock plans in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
|
● |
on or after such date,
the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders,
and not by written consent, by the affirmative vote of at least 66 2⁄3% of the outstanding voting stock that is not owned by
the interested stockholder. |
In general, Section 203 defines a “business
combination” to include the following:
|
● |
any merger or consolidation
involving the corporation and the interested stockholder; |
|
● |
any sale, transfer, pledge or other disposition of
10% or more of the assets of the corporation involving the interested stockholder; |
|
● |
subject to certain exceptions,
any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; |
|
● |
any transaction involving
the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation
beneficially owned by the interested stockholder; or |
|
● |
the receipt by the interested
stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits by or through the corporation. |
In general, Section 203 defines an “interested
stockholder” as an entity or person who, together with the person’s affiliates and associates, beneficially owns, or within
three years prior to the time of determination of interested stockholder status did own, 15% or more of the outstanding voting stock
of the corporation.
Anti-Takeover Effects of Certain Provisions of our Bylaws
Our bylaws provide that directors may be removed
by the stockholders with or without cause upon the vote of a majority of the holders of common stock then entitled to vote. Furthermore,
the authorized number of directors may be changed only by resolution of the board of directors or of the stockholders, and vacancies
may only be filled by a majority vote of the directors, including those who may have resigned. Except as otherwise provided in the bylaws
and the certificate of incorporation, as amended, any vacancies or newly created directorships on the board of directors resulting from
any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class may
be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
Our bylaws also provide that only our chairman
of the board, chief executive officer, president or one or more stockholders holding shares in the aggregate entitled to cast not less
than ten percent of the votes at that meeting may call a special meeting of stockholders.
The combination of these provisions makes it
more difficult for our existing stockholders to replace our Board as well as for another party to obtain control of us by replacing our
Board. Since our Board has the power to retain and discharge our officers, these provisions could also make it more difficult for existing
stockholders or another party to effect a change in management. In addition, the authorization of undesignated preferred stock makes
it possible for our Board to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt
to change our control.
These provisions are intended to enhance the
likelihood of continued stability in the composition of our Board and its policies and to discourage coercive takeover practices and
inadequate takeover bids. These provisions are also designed to reduce our vulnerability to hostile takeovers and to discourage certain
tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers
for our shares and may have the effect of delaying changes in our control or management. As a consequence, these provisions may also
inhibit fluctuations in the market price of our common stock that could result from actual or rumored takeover attempts. We believe that
the benefits of these provisions, including increased protection of our potential ability to negotiate with the proponent of an unfriendly
or unsolicited proposal to acquire or restructure our company, outweigh the disadvantages of discouraging takeover proposals, because
negotiation of takeover proposals could result in an improvement of their terms.
Limitation on
Directors’ Liability; Indemnification
Our bylaws contain provisions that limit the
liability of our current and former directors for monetary damages to the fullest extent permitted by Delaware law. Delaware law provides
that directors of a corporation will not be personally liable for monetary damages for any breach of fiduciary duties as directors, except
liability for:
|
● |
any breach of the director’s duty of loyalty
to the corporation or its stockholders; |
|
● |
any act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law; |
|
● |
unlawful payments of dividends or unlawful stock repurchases
or redemptions as provided in Section 174 of the DGCL; or |
|
● |
any transaction from which the director derived an
improper personal benefit. |
This limitation of liability does not apply to
liabilities arising under federal securities laws and does not affect the availability of equitable remedies such as injunctive relief
or rescission.
Our bylaws provide that we are required to indemnify
our directors to the fullest extent permitted by Delaware law. Our bylaws also provide that, upon satisfaction of certain conditions,
we are required to advance expenses incurred by a director in advance of the final disposition of any action or proceeding, and permit
us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions
in that capacity regardless of whether we would otherwise be permitted to indemnify him or her under the provisions of Delaware law.
Our bylaws also provide our Board with discretion to indemnify our officers and employees when determined appropriate by our Board. We
have entered into agreements to indemnify our directors, executive officers and other employees as determined by the Board. With certain
exceptions, these agreements provide for indemnification for related expenses including, among other things, attorneys’ fees, judgments,
fines and settlement amounts incurred by any of these individuals in any action or proceeding. We believe that these provisions and agreements
are necessary to attract and retain qualified persons as directors and officers. We also maintain customary directors’ and officers’
liability insurance.
The limitation of liability and indemnification
provisions in our bylaws may discourage stockholders from bringing a lawsuit against our directors for breach of their fiduciary duty.
They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful,
might benefit us and other stockholders. Further, a stockholder’s investment may be adversely affected to the extent that we pay
the costs of settlement and damage awards against directors and officers as required by these indemnification provisions. At present,
there is no pending litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought
and we are not aware of any threatened litigation that may result in claims for indemnification.
Transfer Agent
The transfer agent for our Common Stock and Series B
Preferred Stock is VStock Transfer, LLC, whose address is 18 Lafayette Place, Woodmere, NY 11598 and telephone number is (212) 828-8436.
MATERIAL
U.S. FEDERAL INCOME TAX CONSEQUENCES
The following is a general discussion of the
material U.S. federal income tax considerations applicable to the ownership and disposition of shares of our Common Stock, Pre-Funded
Warrants and Warrants acquired in this offering. This discussion is for general information only and is not tax advice. Accordingly,
all prospective holders of our Common Stock and Warrants should consult their own tax advisors with respect to the U.S. federal, state,
local and non-U.S. tax consequences of the purchase, ownership and disposition of our Common Stock and Warrants. This discussion is based
on current provisions of the U.S. Internal Revenue Code of 1986, as amended, which we refer to as the Code, existing and proposed U.S.
Treasury Regulations promulgated thereunder, current administrative rulings and judicial decisions, all as in effect as of the date of
this prospectus, all of which are subject to change or to differing interpretation, possibly with retroactive effect. Any change could
alter the tax consequences described in this prospectus. We assume in this discussion that each holder holds shares of our Common Stock,
Pre-Funded Warrants and Warrants as capital assets within the meaning of Section 1221 of the Code (generally property held for investment).
This discussion does not address all aspects
of U.S. federal income taxation that may be relevant to a particular holder in light of that holder’s individual circumstances,
does not address the alternative minimum or Medicare contribution taxes, and does not address any aspects of U.S. state, local or non-U.S.
taxes or any U.S. federal taxes other than income tax. This discussion also does not consider any specific facts or circumstances that
may apply to a holder and does not address aspects of U.S. federal income taxation that may be applicable to holders that are subject
to special tax rules, including without limitation:
● |
tax-exempt organizations; |
● |
financial institutions; |
● |
brokers or dealers in securities; |
● |
regulated investment companies; |
● |
real estate investment
trusts; |
● |
pension plans, individual
retirement accounts and other tax deferred accounts; |
● |
persons that mark their
securities to market; |
● |
controlled foreign corporations; |
● |
passive foreign investment
companies; |
● |
“dual resident”
corporations; |
● |
persons that receive our
Common Stock or Warrants as compensation for the performance of services; |
● |
owners that hold our Common
Stock or Warrants as part of a straddle, hedge, conversion transaction, synthetic security or other integrated investment; |
● |
owners that own, or are
deemed to own, more than 5% of our capital stock (except to the extent specifically set forth below); |
● |
persons that have a functional
currency other than the U.S. dollar; and |
● |
certain U.S. expatriates. |
In addition, this discussion does not address
the tax treatment of partnerships or other pass-through entities for U.S. federal income tax purposes, or persons who hold our Common
Stock, Pre-Funded Warrants or Warrants through partnerships or other pass-through entities for U.S. federal income tax purposes. A partner
in a partnership or other pass-through entity that will hold our Common Stock, Pre-Funded Warrants or Warrants should consult his, her
or its own tax advisor regarding the tax consequences of acquiring, holding and disposing of our Common Stock, Pre-Funded Warrants or
Warrants through a partnership or other pass-through entity, as applicable.
As used in this prospectus, the term “U.S.
holder” means a beneficial owner of Common Stock, Pre-Funded Warrants or Warrants that is for U.S. federal income tax purposes:
● |
a citizen or individual
resident of the United States; |
● |
a corporation (or other
entity properly classified as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the
United States, any state within the United States, or the District of Columbia; |
● |
an estate, the income of
which is subject to U.S. federal income taxation regardless of its source; or |
● |
a trust, if (i) a
U.S. court is able to exercise primary supervision over the trust’s administration and one or more “United States persons”
(as defined in the Code) have the authority to control all substantial decisions of the trust, or (ii) in the case of a trust
that was treated as a domestic trust under the laws in effect before 1997, a valid election is in place under applicable U.S. Treasury
regulations to treat such trust as a domestic trust. |
The term “non-U.S. holder” means
any beneficial owner of shares of Common Stock, Pre-Funded Warrants or Warrants that is not a U.S. holder and is not a partnership or
other entity properly classified as a partnership for U.S. federal income tax purposes. For the purposes of this prospectus, U.S. holders
and non-U.S. holders are referred to collectively as “holders.” =There can be no assurance that the Internal Revenue Service,
which we refer to as the IRS, will not challenge one or more of the tax consequences described herein. We have not obtained, nor do we
intend to obtain, a ruling from the IRS with respect to the U.S. federal income tax consequences of the purchase, ownership or disposition
of our Common Stock or Warrants.
Allocation of Purchase Price Between Each
Share of Common Stock, Pre-Funded Warrant and Warrant
The purchase price for each Unit will be allocated
between each share of Common Stock (or, in lieu of Common Stock, each Pre-Funded Warrant) and accompanying Warrant in proportion to their
relative fair market values at the time the Unit is purchased by the holder. This allocation will establish a holder’s initial
tax basis for U.S. federal income tax purposes in his, her or its share of Common Stock (or, in lieu of Common Stock, Pre-Funded Warrant)
and Warrant included in each investment unit. We will not be providing holders with such allocation, and it is possible that different
holders will reach different determinations regarding such allocation. A holder’s allocation of purchase price between each share
of Common Stock (or, in lieu of Common Stock, each Pre-Funded Warrant) and the accompanying Warrant is not binding on the IRS or the
courts, and no assurance can be given that the IRS or the courts will agree with a holder’s allocation.
Accordingly, each prospective holder should consult
his, her or its own tax advisor with respect to the allocation, and the risks associated with such allocation, of the holder’s
purchase price for the investment unit between our shares of Common Stock (or, in lieu of Common Stock, Pre-Funded Warrants) and Warrants.
Treatment of Pre-Funded Warrants
Although it is not entirely free from doubt,
a Pre-Funded Warrant should be treated as a share of our Common Stock for U.S. federal income tax purposes and a holder of Pre-Funded
Warrants should generally be taxed in the same manner as a holder of Common Stock, as described below.
Accordingly, no gain or loss should be recognized
upon the exercise of a Pre-Funded Warrant and, upon exercise, the holding period of a Pre-Funded Warrant should carry over to the share
of Common Stock received. Similarly, the tax basis of the Pre-Funded Warrant should carry over to the share of Common Stock received
upon exercise, increased by the exercise price of $0.0001 per share. Each holder should consult his, her or its own tax advisor regarding
the risks associated with the acquisition of Pre-Funded Warrants pursuant to this offering (including potential alternative characterizations).
The balance of this discussion generally assumes that the characterization described above will be respected for U.S. federal income
tax purposes.
Tax Consequences to U.S. Holders
Exercise or Expiration of Warrants
Subject to the discussion below with respect
to the cashless exercise of a Warrant, a U.S. holder will not recognize income, gain or loss on the exercise of a Warrant. A U.S. holder’s
tax basis in the Common Stock received upon the exercise of a Warrant will equal the sum of (i) the initial tax basis of the Warrant
exercised (as determined pursuant to the rules discussed above under “Allocation of Purchase Price Between Share of Common
Stock or Pre-Funded Warrant and Accompanying Warrant”) and (ii) the exercise price of the Warrant. The U.S. holder’s
holding period for the Common Stock received upon exercise of a Warrant will begin on the day after such exercise (or possibly on the
date of exercise) and will not include the period during which the U.S. holder held the Warrant.
If a registration statement registering the issuance
of the Common Stock underlying the Warrants under the Securities Act is not effective or available the holder may, in its sole discretion,
elect to exercise the Warrant through a cashless exercise. The tax consequences of a cashless exercise of a Warrant are not clear under
current U.S. tax law. U.S. holders should consult their own tax advisors regarding the tax consequences of a cashless exercise.
If a Warrant is allowed to lapse unexercised,
a U.S. holder generally will recognize a capital loss equal to such holder’s tax basis in the Warrant. The deductibility of capital
losses is subject to significant limitations.
Distributions on Our Common Stock
We have never paid cash dividends on our Common
Stock and we do not anticipate paying any cash dividends in the foreseeable future. See “Dividend Policy.” If we do make
distributions on our Common Stock to a U.S. holder, those distributions generally will constitute dividends for U.S. federal income tax
purposes to the extent paid from our current or accumulated earnings and profits as determined under U.S. federal income tax principles.
If a distribution exceeds our current and accumulated earnings and profits, the excess will be treated as a tax-free return of the U.S.
holder’s investment, up to such U.S. holder’s tax basis in the Common Stock. Any remaining excess will be treated as capital
gain, subject to the tax treatment described below in “—Sale, Exchange or Other Taxable Disposition of Our Common Stock or
Warrants.” Dividends paid by us generally will be eligible for the reduced rates of tax for qualified dividend income allowed to
individual U.S. holders and for the dividends received deduction allowed to corporate U.S. holders, in each case assuming that certain
holding period and other requirements are satisfied.
Constructive Distributions on Our Warrants
Under Section 305 of the Code, an adjustment
to the number of shares of Common Stock that will be issued on the exercise of our Warrants (whether Pre-Funded Warrants or Warrants),
or an adjustment to the exercise price of such Warrants, may be treated as a constructive distribution to a U.S. Holder of the Warrants
if, and to the extent that, such adjustment has the effect of increasing such U.S. Holder’s proportionate interest in our “earnings
and profits” or assets, depending on the circumstances of such adjustment (for example, if such adjustment is to compensate for
a distribution of cash or other property to holders of our Common Stock). Adjustments to the exercise price of a Warrant made pursuant
to a bona fide reasonable adjustment formula that has the effect of preventing dilution of the interest of the holder of the Warrant
should generally not result in a constructive distribution. Any constructive distributions generally would be subject to the tax treatment
described above under “—Distributions on our Common Stock”.
Sale, Exchange or Other Taxable Disposition
of Our Common Stock, Pre-Funded Warrants or Warrants
Upon the sale, exchange, or other taxable disposition
of our Common Stock or Warrants (whether Pre-Funded Warrants or Warrants), a U.S. holder will recognize gain or loss equal to the difference
between the amount realized upon the disposition and the U.S. holder’s tax basis in the Common Stock or Warrants sold or exchanged.
Any gain or loss generally will be capital gain
or loss, and will be long-term capital gain or loss if the U.S. holder’s holding period for the Common Stock or Warrants exceeded
one year at the time of the disposition. Certain U.S. holders (including individuals) are currently eligible for preferential rates of
U.S. federal income taxation in respect of long-term capital gains. The deductibility of capital losses is subject to significant limitations.
Information Reporting and Backup Withholding
In general, information reporting requirements
may apply to distributions (whether actual or constructive) paid to a U.S. holder on our Common Stock or Warrants, and to the proceeds
of the sale, exchange or other disposition of our Common Stock and Warrants, unless the U.S. holder is an exempt recipient. Backup withholding
will apply to such payments if the U.S. holder fails to provide a taxpayer identification number, a certification of exempt status or
has been notified by the IRS that it is subject to backup withholding (and such notification has not been withdrawn). Backup withholding
is not an additional tax. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against
a U.S. holder’s U.S. federal income tax liability provided the required information is timely furnished to the IRS.
Tax Consequences to Non-U.S. Holders
Exercise or Expiration of Warrants
In general, a non-U.S. holder will not be required
to recognize income, gain or loss upon the exercise of a Warrant by payment of the exercise price. To the extent that a cashless exercise
results in a taxable exchange, the consequences would be similar to those described below under “Sale, Exchange or Other Taxable
Disposition of our Common Stock or Warrants”.
The expiration of a Warrant will be treated as
if the non-U.S. holder sold or exchanged the Warrant and recognized a capital loss equal to the non-U.S. holder’s basis in the
Warrant. A non-U.S. holder will not be able to utilize a loss recognized upon expiration of a Warrant against the Non-U.S. holder’s
U.S. federal income tax liability, however, unless the loss (i) is effectively connected with the non-U.S. holder’s conduct
of a trade or business within the United States (and, if an income tax treaty applies, is attributable to a “permanent establishment”
or “fixed base” in the United States) or (ii) is treated as a U.S. source loss and the non-U.S. holder is present in
the United States 183 days or more in the taxable year of disposition and certain other conditions are met.
Distributions on Our Common Stock
We have never paid cash dividends on our Common
Stock and we do not anticipate paying any cash dividends in the foreseeable future. See “Dividend Policy.” If we do make
distributions to holders of our Common Stock or if we are treated as making a constructive distribution to holders of our Warrants or
Pre-Funded Warrants, those distributions generally will constitute dividends for U.S. federal income tax purposes to the extent paid
from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. If a distribution exceeds
our current and accumulated earnings and profits, the excess will be treated as a tax-free return of the non-U.S. holder’s investment,
up to such non-U.S. holder’s tax basis in the Common Stock. Any remaining excess will be treated as capital gain, subject to the
tax treatment described below in “—Sale, Exchange or Other Taxable Disposition of Our Common Stock or Warrants.”
Distributions (including constructive distributions)
made to a non-U.S. holder that are treated as dividends generally will be subject to withholding of U.S. federal income tax at a rate
of 30% of the gross amount or such lower rate as may be specified by an applicable income tax treaty between the United States and such
holder’s country of residence, unless such dividends are effectively connected with a trade or business conducted by a non U.S.
holder within the United States (as discussed below). A non-U.S. holder of our Common Stock who claims the benefit of an applicable income
tax treaty between the United States and such holder’s country of residence generally will be required to provide a properly executed
IRS Form W-8BEN or W- 8BEN-E (or successor form), as applicable, and satisfy applicable certification and other requirements. Non-U.S.
holders are urged to consult their own tax advisors regarding their entitlement to benefits under a relevant income tax treaty. A non-U.S.
holder that is eligible for a reduced rate of U.S. withholding tax under an income tax treaty may be able to obtain a refund or credit
of any excess amounts withheld by timely filing the required information with the IRS.
Dividends that are treated as effectively connected
with a trade or business conducted by a non-U.S. holder within the United States and, if an applicable income tax treaty so provides,
that are attributable to a “permanent establishment” or a “fixed base” maintained by the non-U.S. holder within
the United States, generally are exempt from the 30% withholding tax if the non-U.S. holder satisfies applicable certification and disclosure
requirements.
U.S. effectively connected income, net of specified
deductions and credits, is generally taxed at the same graduated U.S. federal income tax rates applicable to United States persons (as
defined in the Code). Any U.S. effectively connected income received by a non-U.S. holder that is a corporation may also be subject to
an additional “branch profits tax” at a 30% rate or such lower rate as may be specified by an applicable income tax treaty
between the United States and such holder’s country of residence.
Constructive Distributions on Our Warrants
As described above under “—Tax Consequences
to U.S. Holders—Constructive Distributions on our Warrants,” an adjustment to the Warrants could result in a constructive
distribution to a non-U.S. holder, which would be treated as described under “—Distributions on Our Common Stock” above.
Any resulting withholding tax attributable to deemed dividends would be collected from other amounts payable or distributable to the
non-U.S. holder. Non U.S. holders should consult their tax advisors regarding the proper treatment of any adjustments to the Warrants.
In addition, regulations governing “dividend
equivalents” under Section 871(m) of the Code may apply to the Pre-Funded Warrants. Under those regulations, an implicit
or explicit payment made to the holder of Pre-Funded Warrants that references a distribution on our Common Stock would generally be taxable
to a non-U.S. holder in the manner described under “Distributions on our Common Stock” above. Such dividend equivalent amount
would be taxable and subject to withholding whether or not there is actual payment of cash or other property, and we may satisfy any
withholding obligations by withholding from other amounts due to the non-U.S. holder.
Non-U.S. holders are encouraged to consult their
own tax advisors regarding the application of Section 871(m) of the Code to the Pre-Funded Warrants.
Sale, Exchange or Other Taxable Disposition
of Our Common Stock, Pre-Funded Warrants or Warrants
In general, a non-U.S. holder will not be subject
to any U.S. federal income tax on any gain realized upon such holder’s sale, exchange or other taxable disposition of shares of
our Common Stock or Warrants (whether Pre-Funded Warrants or Warrants) unless:
| ● | the
gain is effectively connected with the non-U.S. holder’s conduct of a U.S. trade or business and, if an applicable income tax treaty
so provides, is attributable to a “permanent establishment” or a “fixed base” maintained by such non-U.S. holder
in the United States, in which case the non-U.S. holder generally will be taxed on such gain at the graduated U.S. federal income tax
rates applicable to United States persons (as defined in the Code) and, if the non-U.S. holder is a foreign corporation, the branch profits
tax described above in “—Tax Consequences to Non-U.S. Holders—Distributions on Our Common Stock” also may apply
to such gain; |
| ● | the
non-U.S. holder is a nonresident alien individual who is present in the United States for 183 days or more in the taxable year of the
taxable disposition and certain other conditions are met, in which case the non-U.S. holder will be subject to a 30% tax (or such lower
rate as may be specified by an applicable income tax treaty between the United States and such holder’s country of residence) on
the net gain derived from the taxable disposition, which may be offset by certain U.S. source capital losses of the non-U.S. holder,
if any; or |
| ● | we
are, or have been, at any time during the five-year period preceding such taxable disposition (or the non-U.S. holder’s holding
period, if shorter) a “U.S. real property holding corporation,” unless our Common Stock is regularly traded on an established
securities market and the non-U.S. holder holds no more than 5% of our outstanding Common Stock, directly or indirectly, during the shorter
of the 5-year period ending on the date of the taxable disposition or the period that the non-U.S. holder held our Common Stock. Generally,
a corporation is a U.S. real property holding corporation only if the fair market value of its U.S. real property interests equals or
exceeds 50% of the sum of the fair market value of its worldwide real property interests plus its other assets used or held for use in
a trade or business. Although there can be no assurance, we do not believe that we are, or have been, a U.S. real property holding corporation,
or that we are likely to become one in the future. No assurance can be provided that our Common Stock will be regularly traded on an
established securities market for purposes of the rules described above. |
Information Reporting and Backup Withholding
We must report annually to the IRS and to each
non-U.S. holder the gross amount of the distributions paid on our Common Stock (and constructive distributions on our Warrants) to such
holder and the tax withheld, if any, with respect to such distributions. Non-U.S. holders may have to comply with specific certification
procedures to establish that the holder is not a United States person (as defined in the Code) in order to avoid backup withholding at
the applicable rate with respect to dividends on our Common Stock or Warrants. Dividends paid to non-U.S. holders subject to the U.S.
withholding tax, as described above in “Non-U.S. Holders—Distributions on Our Common Stock,” generally will be exempt
from U.S. backup withholding.
Information reporting and backup withholding
generally will apply to the proceeds of a disposition of our Common Stock and Warrants by a non-U.S. holder effected by or through the
U.S. office of any broker, U.S. or foreign, unless the holder certifies its status as a non-U.S. holder and satisfies certain other requirements,
or otherwise establishes an exemption. Generally, information reporting and backup withholding will not apply to a payment of disposition
proceeds to a non-U.S. holder where the transaction is effected outside the United States through a non-U.S. office of a broker. However,
for information reporting purposes, dispositions effected through a non-U.S. office of a broker with substantial U.S. ownership or operations
generally will be treated in a manner similar to dispositions effected through a U.S. office of a broker. Non-U.S. holders should consult
their own tax advisors regarding the application of the information reporting and backup withholding rules to them.
Copies of information returns may be made available
to the tax authorities of the country in which the non-U.S. holder resides or is incorporated under the provisions of a specific treaty
or agreement.
Backup withholding is not an additional tax.
Any amounts withheld under the backup withholding rules from a payment to a non-U.S. holder can be refunded or credited against
the non-U.S. holder’s U.S. federal income tax liability, if any, provided that an appropriate claim is filed with the IRS.
Foreign Accounts
The Foreign Account Tax Compliance Act, or FATCA,
generally imposes a 30% withholding tax on dividends(including constructive dividends) on, and gross proceeds from the sale or other
disposition of, our Common Stock and Warrants if paid to a non-U.S. entity unless (i) if the non-U.S. entity is a “foreign
financial institution,” the non-U.S. entity undertakes certain due diligence, reporting, withholding, and certification obligations,
(ii) if the non-U.S. entity is not a “foreign financial institution,” the non-U.S. entity identifies certain of its
U.S. investors, if any, or (iii) the non-U.S. entity is otherwise exempt under FATCA.
Withholding under FATCA generally will apply
to payments of dividends (including constructive dividends) on our Common Stock and Warrants.
An intergovernmental agreement between the United
States and an applicable foreign country may modify the requirements described in this section. Under certain circumstances, a holder
may be eligible for refunds or credits of the tax. Non-U.S. holders should consult their own tax advisors regarding the possible implications
of FATCA on their investment in our Common Stock or Warrants.
The preceding discussion of material U.S.
federal income tax considerations is for informational purposes only. It is not tax advice. Prospective investors should consult their
own tax advisors regarding the particular U.S. federal, state, local and non-U.S. tax consequences of purchasing, holding and disposing
of our Common Stock or Warrants, including the consequences of any proposed changes in applicable laws.
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION
FOR
SECURITIES ACT LIABILITY
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions,
the registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable.
LEGAL
MATTERS
Sullivan & Worcester LLP will pass upon
the validity of the securities being registered by the registration statement of which this prospectus is a part. Blank Rome LLP is acting
as counsel to the placement agent in connection with certain legal matters related to this offering.
EXPERTS
The consolidated financial statements of WiSA
Technologies, Inc. (formerly Summit Wireless Technologies, Inc.) as of December 31, 2022 and 2021, and for each of the
two years in the period ended December 31, 2022, appearing in this Registration Statement on Form S-1 have been audited by BPM LLP,
an independent registered public accounting firm, as stated in their report thereon, are included in reliance upon such report (which
contains an explanatory paragraph relating to the Company’s ability to continue as a going concern as described in Note 1 to the
consolidated financial statements) and upon the authority of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This prospectus constitutes a part of a registration
statement on Form S-1 filed under the Securities Act. As permitted by the SEC’s rules, this prospectus and any prospectus
supplement, which form a part of the registration statement, do not contain all the information that is included in the registration
statement. You will find additional information about us in the registration statement and its exhibits. Any statements made in this
prospectus or any prospectus supplement concerning legal documents are not necessarily complete and you should read the documents that
are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of the document
or matter.
You can read our electronic SEC filings, including
such registration statement, on the internet at the SEC’s website at www.sec.gov. We are subject to the information
reporting requirements of the Exchange Act, and we file reports, proxy statements and other information with the SEC. These reports,
proxy statements and other information will be available at the website of the SEC referred to above. We also maintain a website at www.wisatechnologies.com,
at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or
furnished to, the SEC. However, the information contained in or accessible through our website is not part of this prospectus or the
registration statement of which this prospectus forms a part, and investors should not rely on such information in making a decision
to purchase our securities in this offering.
INDEX TO FINANCIAL STATEMENTS
REPORT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
WiSA Technologies, Inc.
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated
balance sheets of WiSA Technologies, Inc. (a Delaware corporation) and its subsidiaries (the “Company”) as of December 31,
2022 and 2021, the related consolidated statements of operations, convertible preferred stock and stockholders’ equity(deficit),
and cash flows for each of the two years in the period ended December 31, 2022, and the related notes (collectively referred to as the
“consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material
respects, the financial position of the Company as of December 31, 2022 and 2021, and the results of its operations and its cash flows
for each of the two years in the period ended December 31, 2022, in conformity with accounting principles generally accepted in the United
States of America.
Going Concern Uncertainty
The accompanying consolidated financial statements
have been prepared assuming that WiSA Technologies, Inc. and its subsidiaries will continue as a going concern. As discussed in Note
2 to the consolidated financial statements, the Company’s recurring losses from operations, a net capital deficiency, available
cash and cash used in operations raise substantial doubt about its ability to continue as a going concern. Management’s plans in
regard to these matters are also described in Note 2. The consolidated financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
Basis for Opinion
These consolidated financial statements are the
responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial
statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United
States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities
laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the
standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated
financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were
we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an
understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the
Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to
assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures
that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the
consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made
by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide
a reasonable basis for our opinion.
We have served
as the Company’s auditor since 2016. |
|
|
|
/s/ BPM
LLP |
|
San Jose, California |
|
March 16, 2023 |
|
WISA TECHNOLOGIES, INC.
CONSOLIDATED BALANCE
SHEETS
December 31, 2022 and 2021
(in thousands, except share and per share data)
| |
Year Ended
December 31, | |
| |
2022 | | |
2021 | |
Assets | |
| | |
| |
Current Assets: | |
| | | |
| | |
Cash and cash equivalents | |
$ | 2,897 | | |
$ | 13,108 | |
Accounts receivable | |
| 273 | | |
| 214 | |
Inventories | |
| 7,070 | | |
| 4,780 | |
Prepaid expenses
and other current assets | |
| 890 | | |
| 1,086 | |
Total current assets | |
| 11,130 | | |
| 19,188 | |
Property and equipment, net | |
| 174 | | |
| 162 | |
Other assets | |
| 148 | | |
| 41 | |
Total assets | |
$ | 11,452 | | |
$ | 19,391 | |
| |
| | | |
| | |
Liabilities, Convertible Preferred Stock and Stockholders'
Equity (Deficit) | |
| | | |
| | |
Current Liabilities: | |
| | | |
| | |
Accounts payable | |
$ | 2,042 | | |
$ | 1,549 | |
Accrued liabilities | |
| 1,632 | | |
| 1,416 | |
Total current liabilities | |
| 3,674 | | |
| 2,965 | |
Convertible note payable | |
| 457 | | |
| — | |
Warrant liabilities | |
| 8,945 | | |
| 8 | |
Derivative liability | |
| 333 | | |
| — | |
Other liabilities | |
| 39 | | |
| 41 | |
Total liabilities | |
| 13,448 | | |
| 3,014 | |
| |
| | | |
| | |
Commitments and contingencies (Note 8) | |
| | | |
| | |
| |
| | | |
| | |
Series A 8% Senior Convertible Preferred stock, par
value $0.0001; 0 shares authorized and outstanding as of December 31, 2022; 1,250,000 shares authorized; 0 shares
outstanding as of December 31, 2021, (liquidation preference of $0) | |
| — | | |
| — | |
| |
| | | |
| | |
Stockholders' Equity (Deficit): | |
| | | |
| | |
Common stock, par value $0.0001; 200,000,000 shares
authorized; 712,564 and 158,310 shares issued and outstanding as of December 31, 2022 and 2021,
respectively | |
| 7 | | |
| 2 | |
Additional paid-in capital | |
| 226,318 | | |
| 228,578 | |
Accumulated deficit | |
| (228,321 | ) | |
| (212,203 | ) |
Total stockholders'
equity (deficit) | |
| (1,996 | ) | |
| 16,377 | |
Total liabilities,
convertible preferred stock and stockholders' equity (deficit) | |
$ | 11,452 | | |
$ | 19,391 | |
Note: Share and per share amounts have been retroactively
adjusted to reflect the impact of a 1-for-100 reverse stock split effected in January 2023, as discussed in Note 1.
The accompanying notes are an integral part of
these consolidated financial statements.
WISA TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS
OF OPERATIONS
For the years ended December 31, 2022 and
2021
(in thousands, except share and per share data)
| |
Year Ended
December 31, | |
| |
2022 | | |
2021 | |
Revenue, net | |
$ | 3,365 | | |
$ | 6,541 | |
Cost of revenue | |
| 2,970 | | |
| 4,677 | |
Gross profit | |
| 395 | | |
| 1,864 | |
| |
| | | |
| | |
Operating Expenses: | |
| | | |
| | |
Research and development | |
| 7,144 | | |
| 5,236 | |
Sales and marketing | |
| 6,140 | | |
| 4,123 | |
General and administrative | |
| 5,155 | | |
| 4,016 | |
Total operating expenses | |
| 18,439 | | |
| 13,375 | |
Loss from operations | |
| (18,044 | ) | |
| (11,511 | ) |
| |
| | | |
| | |
Interest expense, net | |
| (898 | ) | |
| (9 | ) |
Change in fair value of warrant liability | |
| 2,852 | | |
| — | |
Change in fair value of derivative liability | |
| (47 | ) | |
| — | |
Gain on forgiveness of Paycheck Protection Program loan | |
| — | | |
| 859 | |
Other expense, net | |
| (12 | ) | |
| (11 | ) |
Warrant inducement expense | |
| — | | |
| (1,146 | ) |
Loss before provision for income taxes | |
| (16,149 | ) | |
| (11,818 | ) |
Provision for income taxes | |
| 2 | | |
| 2 | |
Net loss | |
| (16,151 | ) | |
| (11,820 | ) |
Convertible preferred stock dividend | |
| — | | |
| (34 | ) |
Deemed dividend on exchange of convertible
preferred stock for common stock | |
| — | | |
| (1,192 | ) |
Net loss attributable
to common stockholders | |
$ | (16,151 | ) | |
$ | (13,046 | ) |
Net loss per common share - basic and
diluted | |
$ | (82.89 | ) | |
$ | (105.20 | ) |
Weighted average number of common shares
used in computing net loss per common share | |
| 194,852 | | |
| 124,016 | |
Note: Share and per share amounts have been retroactively
adjusted to reflect the impact of a 1-for-100 reverse stock split effected in January 2023, as discussed in Note 1.
The accompanying notes are an integral part of
these consolidated financial statements.
WISA TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS
OF CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY (DEFICIT)
For the years ended December 31, 2022 and
2021
(in thousands, except share data)
| |
| | |
| | |
| | |
| | |
Total | |
| |
Convertible
Preferred Stock | | |
Common Shares | | |
Additional | | |
Accumulated | | |
Stockholders' | |
| |
Shares | | |
Amount | | |
Shares | | |
Amount | | |
Paid-in Capital | | |
Deficit | | |
Equity (Deficit) | |
Balance as of December 31, 2020 | |
| 250,000 | | |
$ | 597 | | |
| 84,142 | | |
$ | 1 | | |
$ | 207,698 | | |
$ | (200,383 | ) | |
$ | 7,316 | |
Issuance of common stock upon warrant exercise | |
| — | | |
| — | | |
| 34,655 | | |
| — | | |
| 8,303 | | |
| — | | |
| 8,303 | |
Warrants issued in connection with warrant exercise | |
| — | | |
| — | | |
| — | | |
| — | | |
| 1,146 | | |
| — | | |
| 1,146 | |
Convertible preferred stock dividend | |
| — | | |
| 34 | | |
| — | | |
| — | | |
| (34 | ) | |
| — | | |
| (34 | ) |
Exchange of convertible preferred stock for common stock | |
| (250,000 | ) | |
| (631 | ) | |
| 2,500 | | |
| — | | |
| 1,640 | | |
| — | | |
| 1,640 | |
Warrants issued upon exchange of preferred stock for common
stock | |
| — | | |
| — | | |
| — | | |
| — | | |
| 570 | | |
| — | | |
| 570 | |
Deemed dividend on exchange of convertible preferred stock | |
| — | | |
| — | | |
| — | | |
| — | | |
| (1,192 | ) | |
| — | | |
| (1,192 | ) |
Stock-based compensation | |
| — | | |
| — | | |
| 9,745 | | |
| — | | |
| 1,346 | | |
| — | | |
| 1,346 | |
Issuance of common stock to vendor | |
| — | | |
| — | | |
| 100 | | |
| — | | |
| 34 | | |
| — | | |
| 34 | |
Release of vested restricted common stock | |
| — | | |
| — | | |
| 2,168 | | |
| — | | |
| — | | |
| — | | |
| — | |
Registered direct offering, net of issuance costs | |
| — | | |
| — | | |
| 25,000 | | |
| 1 | | |
| 9,025 | | |
| — | | |
| 9,026 | |
Issuance of warrants in exchange for services | |
| — | | |
| — | | |
| — | | |
| — | | |
| 42 | | |
| — | | |
| 42 | |
Net loss | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| (11,820 | ) | |
| (11,820 | ) |
Balance as of December 31, 2021 | |
| — | | |
| — | | |
| 158,310 | | |
| 2 | | |
| 228,578 | | |
| (212,203 | ) | |
| 16,377 | |
ASC 842 adoption adjustment | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| 33 | | |
| 33 | |
Stock-based compensation | |
| — | | |
| — | | |
| 12,749 | | |
| — | | |
| 2,027 | | |
| — | | |
| 2,027 | |
Release of vested restricted common stock | |
| — | | |
| — | | |
| 2,108 | | |
| — | | |
| — | | |
| — | | |
| — | |
Restricted stock awards cancelled | |
| — | | |
| — | | |
| (603 | ) | |
| — | | |
| — | | |
| — | | |
| — | |
Issuance of warrants in connection with convertible promissory
note | |
| — | | |
| — | | |
| — | | |
| — | | |
| 91 | | |
| — | | |
| 91 | |
Issuance of common stock and warrants, net of offering costs | |
| — | | |
| — | | |
| 540,000 | | |
| 5 | | |
| 6,426 | | |
| | | |
| 6,431 | |
Issuance of warrants in connection with December 2022 offering | |
| — | | |
| — | | |
| — | | |
| — | | |
| (10,804 | ) | |
| | | |
| (10,804 | ) |
Net loss | |
| — | | |
| — | | |
| — | | |
| — | | |
| — | | |
| (16,151 | ) | |
| (16,151 | ) |
Balance as of December 31, 2022 | |
| — | | |
| — | | |
| 712,564 | | |
$ | 7 | | |
$ | 226,318 | | |
$ | (228,321 | ) | |
$ | (1,996 | ) |
Note: Share amounts have been retroactively adjusted
to reflect the impact of a 1-for-100 reverse stock split effected in January 2023, as discussed in Note 1.
The accompanying notes are an integral part of
these consolidated financial statements.
WISA TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS
OF CASH FLOWS
For the years ended December 31, 2022 and
2021
(in thousands, except share and per share data)
| |
Year Ended December 31, | |
| |
2022 | | |
2021 | |
Cash flows from operating activities: | |
| | | |
| | |
Net loss | |
$ | (16,151 | ) | |
$ | (11,820 | ) |
Adjustments to reconcile net loss to net cash used in operating
activities: | |
| | | |
| | |
Warrant inducement expense | |
| — | | |
| 1,146 | |
Forgiveness of Paycheck Protection Program
loan | |
| — | | |
| (859 | ) |
Stock-based compensation | |
| 2,027 | | |
| 1,346 | |
Depreciation and amortization | |
| 122 | | |
| 79 | |
Expense for issuance of common stock for
services | |
| — | | |
| 34 | |
Issuance of warrants in exchange for services | |
| — | | |
| 42 | |
Amortization of debt discounts | |
| 879 | | |
| — | |
Change in fair value of derivative liability | |
| 47 | | |
| — | |
Change in fair value of warrant liability | |
| (2,852 | ) | |
| — | |
Changes in operating assets and liabilities: | |
| | | |
| | |
Accounts receivable | |
| (59 | ) | |
| (129 | ) |
Inventories | |
| (2,290 | ) | |
| (2,072 | ) |
Prepaid expenses and other assets | |
| 196 | | |
| (178 | ) |
Other assets | |
| 105 | | |
| — | |
Accounts payable | |
| 493 | | |
| 877 | |
Accrued liabilities | |
| 104 | | |
| 26 | |
Other liabilities | |
| (135 | ) | |
| — | |
Net cash used in
operating activities | |
| (17,514 | ) | |
| (11,508 | ) |
| |
| | | |
| | |
Cash flows from investing activities: | |
| | | |
| | |
Purchases of property
and equipment | |
| (43 | ) | |
| (99 | ) |
Net cash used in
investing activities | |
| (43 | ) | |
| (99 | ) |
| |
| | | |
| | |
Cash flows from financing activities: | |
| | | |
| | |
Proceeds from issuance of common stock
upon warrant exercises, net of issuance costs | |
| — | | |
| 8,303 | |
Repayment of finance lease | |
| (25 | ) | |
| (29 | ) |
Proceeds from issuance of common stock,
prefunded warrants and warrants, net of issuance costs | |
| 6,418 | | |
| 9,026 | |
Proceeds from issuance of convertible note
payable, net of issuance costs | |
| 2,465 | | |
| — | |
Repayment of convertible
note payable | |
| (1,512 | ) | |
| — | |
Net cash provided
by financing activities | |
| 7,346 | | |
| 17,300 | |
| |
| | | |
| | |
Net increase (decrease) in cash and cash
equivalents | |
| (10,211 | ) | |
| 5,693 | |
Cash and cash equivalents as of beginning of period | |
| 13,108 | | |
| 7,415 | |
Cash and cash equivalents as of end of period | |
$ | 2,897 | | |
$ | 13,108 | |
| |
| | | |
| | |
Supplemental disclosure of cash flow information: | |
| | | |
| | |
Cash paid for interest | |
$ | 19 | | |
$ | 3 | |
Cash paid for income
taxes | |
$ | 2 | | |
$ | 2 | |
| |
| | | |
| | |
Noncash Investing and Financing Activities: | |
| | | |
| | |
Issuance of warrants
in connection with December 2022 offering | |
$ | 10,804 | | |
$ | — | |
Issuance of warrants
in connection with convertible note payable | |
$ | 1,076 | | |
$ | — | |
Derivative liability
recorded in connection with issuance of convertible note payable | |
$ | 286 | | |
$ | — | |
Exchange of convertible
preferred stock for common stock | |
$ | — | | |
$ | 1,640 | |
Deemed dividend
on exchange of convertible preferred stock for common stock | |
$ | — | | |
$ | (1,192 | ) |
Issuance of warrants
in connection with exchange of preferred stock | |
$ | — | | |
$ | 570 | |
Convertible preferred
stock dividend | |
$ | — | | |
$ | 34 | |
Deferred issuance
costs for public offering of common stock in accounts payable | |
$ | — | | |
$ | 83 | |
The accompanying notes are an integral part of
these consolidated financial statements.
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
1. |
Business and Summary of
Significant Accounting Policies |
WiSA Technologies, Inc formerly known
as Summit Wireless Technologies, Inc. (together with its subsidiaries also referred to herein as “we”, “us”,
“our”, or the “Company”) was originally formed as a limited liability company in Delaware on July 23, 2010. Our
business is to deliver the best-in-class immersive wireless sound technology for intelligent devices and next generation home entertainment
systems through the sale of module components to audio companies as well as audio products to resellers and consumers.
NASDAQ Notifications
On June 23, 2022, the Company received
a written notification (the “Notice”) from the Listing Qualifications Department of the Nasdaq Stock Market LLC (“Nasdaq”)
notifying the Company that it was not in compliance with the minimum bid price requirement for continued listing on the Nasdaq Capital
Market, as set forth under Nasdaq Listing Rule 5550(a)(2) (the “Minimum Bid Price Requirement”), because the closing bid
price of the Company’s common stock was below $1.00 per share for the previous thirty (30) consecutive business days.
Pursuant to Nasdaq Listing Rule 5810(c)(3)(A),
the Company was granted 180 calendar days from the date of the Notice, or until December 20, 2022 (the “Compliance Period”),
to regain compliance with the Minimum Bid Price Requirement.
The Company’s Common Stock failed
to regain compliance with the Minimum Bid Price Requirement as of December 20, 2022. On December 19, 2022, the Company requested an extension
of an additional 180 days in which to regain compliance with the Minimum Bid Price Requirement.
On December 21, 2022, the Company
received notice (the “Second Notice”) from Nasdaq indicating that, while the Company has not regained compliance with the
Minimum Bid Price Requirement, Staff has determined that the Company is eligible for an additional 180-day period, or until June 20,
2023 (the “Second Compliance Period”), to regain compliance.
On January 18, 2023, the Company received
notice (the “January 18 Letter”) from the Nasdaq that it had determined that as of January 18, 2023, the Company’s
Common Stock had a closing bid price of $0.10 or less for ten consecutive trading days triggering application of Listing
Rule 5810(c)(3)(A)(iii) (the “Low Priced Stocks Rule”).
On February 13, 2023, the Company
received notice (the “February 13 Letter”) from Nasdaq that it had determined that the Company had cured its bid price deficiency
and now complies with the Minimum Bid Price Requirement, as the closing bid price of the Company’s common stock was at least $1.00 per
share for at least a minimum of 10 consecutive business days. The Company also believes that it is also in compliance with
the Low Priced Stocks Rule.
On December 21, 2022, the Company
received a letter from Nasdaq notifying the Company that it had determined that the Company did not comply with Listing Rule 5635(d)
because the Company’s December 2022 public offering did not meet Nasdaq’s definition of a public offering under Listing Rule
IM-5635-3. Nasdaq’s determination was based on the significant discount to the “Minimum Price,” as defined in Nasdaq
rules.
The Company had requested a hearing
before a Nasdaq panel to appeal the January 18 Letter and to address all outstanding matters, including compliance with the Minimum Bid
Price Requirement, the Low Priced Stocks Rule and Nasdaq Listing Rule 5635(d), which hearing is scheduled for March 9, 2023. As a result
of the February 13 Letter, the Company only need to address its compliance with the Nasdaq Listing Rule 5635(d) in the hearing. While
the appeal process is pending, the suspension of trading of the Company’s Common Stock will be stayed and our Common Stock will
continue to trade on Nasdaq until the hearing process concludes and the Panel issues a written decision.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
1. |
Business and Summary of
Significant Accounting Policies, continued |
Strategic Advisor
During the third quarter of 2022,
the Company retained a strategic advisor to explore strategic opportunities specifically involving the Company’s intellectual property.
Potential strategic opportunities that may be explored or evaluated as part of this process include the potential for capital raising
transactions, an acquisition, sale of assets, including substantially all of the Company’s assets, merger, business combination,
partnership, joint venture, licensing and/or another strategic alternative. Despite the Company’s efforts to identify and evaluate
potential strategic transactions, the process may not result in any definitive offer to consummate a strategic transaction, or, if we
receive such a definitive offer, the terms may not be as favorable as anticipated or may not result in the execution or approval of a
definitive agreement.
Basis of Presentation
The accompanying consolidated financial
statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S.
GAAP”) and include all adjustments necessary for the fair presentation of the Company’s financial position, results of operations
and cash flows for the periods presented. The consolidated financial statements reflect the accounts of WISA Technologies, Inc. and its
wholly-owned subsidiaries, WISA Technologies Korea, LTD, a Korean limited company, which was established in September 2022, and WiSA,
LLC, a Delaware limited liability company. All intercompany balances and transactions are eliminated.
Use of Estimates
The preparation of financial statements
in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from those estimates.
Reclassification
Certain reclassifications have been
made to prior periods’ consolidated financial statements to conform to the current period presentation. These reclassifications
did not result in any change in previously reported net loss, total assets or stockholders’ equity.
Concentration of Credit Risk and Other Risks and Uncertainties
Financial instruments that potentially
subject the Company to significant concentrations of credit risk consist primarily of cash and cash equivalents and accounts receivable.
Cash and cash equivalents are deposited in demand and money market accounts at one financial institution. At times, such deposits may
be in excess of insured limits. The Company has not experienced any losses on its deposits of cash and cash equivalents.
The Company’s accounts receivable
are derived from revenue earned from customers located throughout the world. The Company performs credit evaluations of its customers’
financial condition and may, in certain circumstances, require full or partial payment in advance of shipping. As of December 31, 2022
and December 31, 2021, there was no allowance for doubtful accounts. As of December 31, 2022, the Company had two customers
accounting for 62% and 12% of accounts receivable. As of December 31, 2021, the Company had two customers accounting
for 35% and 27% of accounts receivable. The Company had four customers accounting for 19%, 18%, 11%
and 10% of its net revenue for the year ended December 31, 2022. The Company had three customers accounting for 27%, 17%
and 14% of its net revenue for the year ended December 31, 2021.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
1. |
Business and Summary of
Significant Accounting Policies, continued |
The Company’s future results
of operations involve a number of risks and uncertainties. Factors that could affect the Company’s future operating results and
cause actual results to vary materially from expectations include, but are not limited to, rapid technological change, continued acceptance
of the Company’s products, competition from substitute products and larger companies, protection of proprietary technology, strategic
relationships and dependence on key individuals.
The Company relies on sole-source
suppliers to manufacture some of the components used in its product. The Company’s manufacturers and suppliers may encounter problems
during manufacturing due to a variety of reasons, any of which could delay or impede their ability to meet demand. The Company is heavily
dependent on a single contractor in China for assembly and testing of its products, a single contractor in Japan for the production of
its transmit semiconductor chip and a single contractor in China for the production of its receive semiconductor chip.
Cash and Cash Equivalents
The Company considers all highly liquid
investments purchased with original maturities of three months or less to be cash equivalents.
Accounts Receivable and Allowance for Doubtful Accounts
Accounts receivable are recorded at
the invoice amount and are generally not interest bearing. The Company reviews its trade receivables aging to identify specific customers
with known disputes or collection issues. The Company exercises judgment when determining the adequacy of these reserves as it evaluates
historical bad debt trends and changes to customers’ financial conditions. Uncollectible receivables are recorded as bad debt expense
when all efforts to collect have been exhausted and recoveries are recognized when they are received. As of December 31, 2022 and
2021, there was no allowance for doubtful accounts.
Fair Value of Financial Instruments
Carrying amounts of certain of the
Company’s financial instruments, including cash and cash equivalents, accounts receivable, prepaid expenses and other current assets,
accounts payable and accrued liabilities approximate fair value due to their relatively short maturities. The carrying value of the Company’s
borrowings and capital lease liabilities approximates fair value based upon borrowing rates currently available to the Company for loans
and capital leases with similar terms. The Company’s Warrant liability and Derivative liability are the only financial instruments
that are adjusted to fair value on a recurring basis.
Inventories
Inventories, principally purchased
components, are stated at the lower of cost or net realizable value. Cost is determined using an average cost, which approximates actual
cost on a first-in, first-out basis. Inventory in excess of salable amounts and inventory which is considered obsolete based upon changes
in existing technology is written off. At the point of loss recognition, a new lower cost basis for that inventory is established and
subsequent changes in facts and circumstances do not result in the restoration or increase in the new cost basis.
Deferred Offering Costs
Deferred offering costs, consisting
of legal, accounting and filing fees relating to public offerings, are capitalized. The deferred offering costs will be offset against
public offering proceeds upon the effectiveness of an offering. In the event that an offering is terminated, deferred offering costs
will be expensed. As of December 31, 2022 and 2021, the Company had capitalized $206,000 and $83,000, respectively, of deferred
offering costs in prepaid expenses and other current assets on the consolidated balance sheet.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
1. |
Business and Summary of
Significant Accounting Policies, continued |
Property and Equipment, Net
Property and equipment are stated
at cost less accumulated depreciation and amortization. Depreciation of property and equipment is computed using the straight-line method
over their estimated useful lives of two to five years. Leasehold improvements and assets acquired under capital lease
are amortized on a straight-line basis over the shorter of the useful life or term of the lease. Upon retirement or sale, the cost and
related accumulated depreciation are removed from the balance sheet and the resulting gain or loss is reflected in operations. Maintenance
and repairs are charged to operations as incurred.
Intangible Assets
Intangible assets consisted of trademarks
and are presented at cost, net of accumulated amortization. The intangible assets are amortized using the straight-line method over their
estimated useful lives of three years, which approximates the economic benefit. If our underlying assumptions regarding the estimated
useful life of an intangible asset change, then the amortization period, amortization expense and the carrying value for such asset would
be adjusted accordingly.
Impairment of Long-Lived Assets
The Company evaluates its long-lived
assets for indicators of possible impairment by comparison of the carrying amounts to future net undiscounted cash flows expected to
be generated by such assets when events or changes in circumstances indicate the carrying amount of an asset may not be recoverable.
Should an impairment exist, the impairment loss would be measured based on the excess carrying value of the asset over the asset’s
fair value or discounted estimates of future cash flows. The Company has not identified any such impairment losses to date.
Convertible Financial Instruments
The Company bifurcates conversion
options and warrants from their host instruments and accounts for them as freestanding derivative financial instruments if certain criteria
are met. The criteria include circumstances in which (a) the economic characteristics and risks of the embedded derivative instrument
are not clearly and closely related to the economic characteristics and risks of the host contract, (b) the hybrid instrument that
embodies both the embedded derivative instrument and the host contract is not re-measured at fair value under otherwise applicable generally
accepted accounting principles with changes in fair value reported in earnings as they occur and (c) a separate instrument with
the same terms as the embedded derivative instrument would be considered a derivative instrument. An exception to this rule is when
the host instrument is deemed to be conventional, as that term is described under applicable U.S. GAAP.
When the Company has determined that
the embedded conversion options and warrants should be bifurcated from their host instruments, discounts are recorded for the intrinsic
value of conversion options embedded in the instruments based upon the differences between the fair value of the underlying common stock
at the commitment date of the transaction and the effective conversion price embedded in the instrument.
Debt discounts under these arrangements
are amortized to interest expense using the interest method over the earlier of the term of the related debt or their earliest date of
redemption.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
1. |
Business and Summary of
Significant Accounting Policies, continued |
Warrants for Common Shares and Derivative Financial
Instruments
Warrants for our shares of common
stock and other derivative financial instruments are classified as equity if the contracts (1) require physical settlement or net-share
settlement or (2) give the Company a choice of net-cash settlement or settlement in its own shares (physical settlement or net-share
settlement). Contracts which (1) require net-cash settlement (including a requirement to net cash settle the contract if an event occurs
and if that event is outside the control of the Company), (2) give the counterparty a choice of net-cash settlement or settlement in
shares (physical settlement or net-share settlement), or (3) that contain reset provisions that do not qualify for the scope exception
are classified as equity or liabilities. The Company assesses classification of its warrants for shares of common stock and other derivatives
at each reporting date to determine whether a change in classification between equity and liabilities is required.
In an equity-classified freestanding
financial instrument, as of the date that a down round feature is triggered, the Company measures the fair value of the instrument without
the down round feature (that is, before the strike price is reduced) and the fair value of the financial instrument with a strike price
that reflects the adjustment from the down round. The incremental difference in the fair value is recorded a deemed dividend. As the
Company has an accumulated deficit, the deemed dividend is recorded as a reduction of additional paid-in capital in the consolidated
balance sheet. The Company increases the net loss available to common stockholders by the amount of the deemed dividend.
Product Warranty
The Company's products are generally
subject to a one year warranty, which provides for the repair, rework, or replacement of products (at the Company's option) that fail
to perform within the stated specification. The Company has assessed its historical claims and, to date, product warranty claims have
not been significant. The Company will continue to assess if there should be a warranty accrual going forward.
Revenue Recognition
The Company generates revenue primarily
from two product categories which include the sale of Consumer Audio Products as well as the sale of Components The Company applies the
following five steps: (1) identify the contract with a customer, (2) identify the performance obligations in the contract, (3) determine
the transaction price, (4) allocate the transaction price to the performance obligations in the contract, and (5) recognize revenue when
a performance obligation is satisfied. The Company considers customer purchase orders to be the contracts with a customer. Revenues,
net of expected discounts, are recognized when the performance obligations of the contract with the customer are satisfied and when control
of the promised goods are transferred to the customer, typically when products, which have been determined to be the only distinct performance
obligations, are shipped to the customer. Expected costs of assurance warranties and claims are recognized as expense.
Taxes assessed by a governmental authority
that are both imposed on and concurrent with a specific revenue-producing transaction, that are collected by us from a customer and deposited
with the relevant government authority, are excluded from revenue. Our revenue arrangements do not contain significant financing components.
Sales to certain distributors are
made under arrangements which provide the distributors with price adjustments, price protection, stock rotation and other allowances
under certain circumstances. The Company does not provide its customers with a contractual right of return. However, the Company accepts
limited returns on a case-by-case basis. These returns, adjustments and other allowances are accounted for as variable consideration.
We estimate these amounts based on the expected amount to be provided to customers and reduce revenue recognized. We believe that there
will not be significant changes to our estimates of variable consideration.
If a customer pays consideration,
or the Company has a right to an amount of consideration that is unconditional before we transfer a good or service to the customer,
those amounts are classified as contract liabilities which are included in other current liabilities when the payment is made or it is
due, whichever is earlier.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
1. |
Business and Summary of Significant
Accounting Policies, continued |
During the years ended December 31,
2022 and 2021, net revenue consisted of the following:
| |
For The Year Ended December 31, | |
(in thousands) | |
2022 | | |
2021 | |
Components | |
$ | 2,315 | | |
$ | 5,504 | |
Consumer Audio Products | |
| 1,050 | | |
| 1,037 | |
Total | |
$ | 3,365 | | |
$ | 6,541 | |
Contract Balances
We receive payments from customers
based on a billing schedule as established in our contracts to partially offset prepayments required by our vendors on long lead time materials.
Amounts collected prior to the fulfillment of the performance obligation are considered contract liabilities and classified as customer
advances within accrued liabilities on the consolidated balance sheets. Contract assets are recorded when we have a conditional right
to consideration for our completed performance under the contracts. Accounts receivables are recorded when the right to this consideration
becomes unconditional. We do not have any material contract assets as of December 31, 2022 and 2021.
| |
December 31, | | |
December 31, | |
(in thousands) | |
2022 | | |
2021 | |
Contract liabilities | |
$ | 44 | | |
$ | — | |
Revenue by Geographic Area
In general, revenue disaggregated
by geography (See Note 10) is aligned according to the nature and economic characteristics of our business and provides meaningful disaggregation
of our results of operations. Since we operate in one segment, all financial segment and product line information can be found
in the consolidated financial statements.
Practical Expedients and Exemptions
As part of our adoption of Accounting
Standards Codification Topic 606, Revenue from Contracts with Customers, we elected to use the following practical expedients: (i) not
to adjust the promised amount of consideration for the effects of a significant financing component when we expect, at contract inception,
that the period between our transfer of a promised product or service to a customer and when the customer pays for that product or service
will be one year or less; (ii) to expense costs as incurred for costs to obtain a contract when the amortization period would have been
one year or less; (iii) not to assess whether promised goods or services are performance obligations if they are immaterial in the context
of the contract with the customer.
In addition, we do not disclose
the value of unsatisfied performance obligations for contracts with an original expected length of one year or less.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
1. |
Business and Summary of
Significant Accounting Policies, continued |
Stock-Based Compensation
The Company measures and recognizes
the compensation expense for restricted stock units and restricted stock awards granted to employees and directors based on the fair
value of the award on the grant date.
Restricted stock units give an employee
an interest in Company stock but they have no tangible value until vesting is complete. Restricted stock units and restricted stock awards
are equity classified and measured at the fair market value of the underlying stock at the grant date and recognized as expense over
the related service or performance period. The Company elected to account for forfeitures as they occur. The fair value of stock awards
is based on the quoted price of our common stock on the grant date. Compensation cost for restricted stock units and restricted stock
awards is recognized using the straight-line method over the requisite service period.
Research and Development
Research and development costs are
charged to operations as incurred and includes salaries, consulting expenses and an allocation of facility costs.
Advertising Costs
Advertising costs are charged to sales
and marketing expenses as incurred. Advertising costs for the years ended December 31, 2022 and 2021 are $1,440,000 and
$688,000, respectively.
Comprehensive Loss
Comprehensive loss represents the
changes in equity of an enterprise, other than those resulting from stockholder transactions. Accordingly, comprehensive loss may include
certain changes in equity that are excluded from net loss. For the years ended December 31, 2022 and 2021, the Company’s comprehensive
loss is the same as its net loss.
Foreign Currency
The financial position and results
of operations of the Company’s foreign operations are measured using currencies other than the U.S. dollar as their functional
currencies. Accordingly, for these operations all assets and liabilities are translated into U.S. dollars at the current exchange rates
as of the respective balance sheet date. Expense items are translated using the weighted average exchange rates prevailing during the
period. Cumulative gains and losses from the translation of these operations’ financial statements are reported as a separate component
of stockholders’ equity, while foreign currency transaction gains or losses, resulting from re-measuring local currency to the
U.S. dollar are recorded in the consolidated statements of operations in other expense, net and were not material for the years
ended December 31, 2022 and 2021.
Reverse Stock Split
On January 26, 2023 the Company announced
that its Board of Directors had approved a 1-for-100 reverse split (the "Reverse Stock Split") of its common stock
that became effective that date. The common stock began trading on a split-adjusted basis on January 27, 2023 under the new CUSIP number
86633R302. All common stock share numbers, warrants to purchase common stock, prices and exercise prices have been retroactively adjusted
to reflect the Reverse Stock Split. The par value of the common stock was not adjusted for the Reverse Stock Split.
Net Loss per Common Share
Basic and diluted net loss per common
share is presented in conformity with the two-class method required for participating securities. The Company considers all series of
convertible preferred stock to be participating securities. Under the two-class method, the net loss attributable to common stockholders
is not allocated to the convertible preferred stock as the holders of the convertible preferred stock do not have a contractual obligation
to share in the losses of the Company. Under the two-class method, net income would be attributed to common stockholders and participating
securities based on their participation rights.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
1. |
Business and Summary of
Significant Accounting Policies, continued |
Basic net loss per common share is
calculated by dividing the net loss attributable to common stockholders by the weighted average number of shares of common stock outstanding
during the period, without consideration for potentially dilutive securities. Diluted net loss per common share is computed by dividing
the net loss attributable to common stockholders by the weighted average number of common shares and potentially dilutive common share
equivalents outstanding for the period determined using the treasury-stock and if-converted methods. For purposes of the diluted net
loss per common share calculation, Series A 8% Senior Convertible Preferred Stock, (“Series A Preferred Stock”), warrants
exercisable for common stock, restricted stock units and shares issuable upon the conversion of convertible notes payable are considered
to be potentially dilutive securities.
For the year ended December 31, 2022,
warrants to purchase 1,253,115 shares of common stock, 14,107 shares of restricted stock, 2,778 shares
of restricted stock issued under an inducement grant and 5,861 shares underlying restricted stock units have been excluded
from the calculation of net loss per common share because the inclusion would be antidilutive.
Income Taxes
Deferred taxes are provided on the
liability method whereby deferred tax assets are recognized for deductible temporary differences, and operating loss and tax credit carryforwards
and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the
reported amounts of assets and liabilities and their tax bases. Deferred tax assets are reduced by a valuation allowance when, in the
opinion of management, it is “more-likely-than-not” that some portion or all of the deferred tax assets will not be realized.
The Company has recognized valuation allowances against its deferred tax assets as of December 31, 2022 and 2021. Deferred tax assets
and liabilities are adjusted for the effects of changes in tax laws and rates on the date of enactment.
The Company uses a comprehensive model
for recognizing, measuring, presenting, and disclosing in the consolidated financial statements tax positions taken or expected to be
taken on a tax return. A tax position is recognized as a benefit only if it is “more-likely-than-not” that the tax position
would be sustained in a tax examination, with a tax examination being presumed to occur. The amount recognized is the largest amount
of tax benefit that is greater than 50% likely of being realized on examination. For tax positions not meeting the “more-likely-than-not”
test, no tax benefit is recorded. The Company recognizes interest accrued and penalties related to unrecognized tax benefits in tax expense.
During the years ended December 31, 2022 and 2021, the Company recognized no interest and penalties.
Recently Adopted Accounting Pronouncements
Adoption of Accounting Standards
Codification (“ASC”) 842
The Company adopted Financial Accounting
Standards Board’s (“FASB”) Accounting Standards Update (“ASU”) No. 2016-02, Leases (“Topic 842”),
as of January 1, 2022, using the modified retrospective approach. The modified retrospective approach provides a method for recording
existing leases at the beginning of the period of adoption. In addition, the Company elected the package of practical expedients permitted
under the transition guidance within the new standard, which among other things, allowed us to carry forward the historical lease classification
and the Company elected the hindsight practical expedient to determine the lease term for existing leases. Adoption of the new standard
resulted in the recording of operating lease right-of-use assets of $212,000 and lease liabilities of $327,000, as of January 1,
2022. In addition, the new standard resulted in the recording of an additional $90,000 of property and equipment and the reversal
of $58,000 of deferred rent and lease incentive and an increase in shareholders’ equity of $33,000 as required under
the new standard. The standard did not have an impact on our consolidated results of operations or cash flows. The comparative information
has not been restated and continues to be reported under the accounting standards in effect for those periods.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
1. |
Business and Summary of
Significant Accounting Policies, continued |
The effect of the changes made to
our consolidated January 1, 2022 balance sheet for the adoption of the new lease standard was as follows (in thousands):
| |
Balance as of | | |
Adjustments | | |
Balance as of | |
| |
December 31, 2021 | | |
Due to ASC 842 | | |
January 1, 2022 | |
Operating lease right-of-use assets | |
$ | — | | |
$ | 212 | | |
$ | 212 | |
Property and equipment, net | |
| 162 | | |
| 90 | | |
| 252 | |
Total assets | |
$ | 19,391 | | |
$ | 302 | | |
$ | 19,693 | |
Operating lease liabilities, current | |
$ | — | | |
$ | 148 | | |
$ | 148 | |
Operating lease liabilities, non-current | |
$ | — | | |
$ | 179 | | |
$ | 179 | |
Deferred rent and lease incentive | |
$ | 58 | | |
$ | (58 | ) | |
$ | — | |
Total liabilities | |
$ | 3,014 | | |
$ | 269 | | |
$ | 3,283 | |
Accumulated deficit | |
$ | (212,203 | ) | |
$ | 33 | | |
$ | (212,170 | ) |
Total stockholders’ equity | |
$ | 16,377 | | |
$ | 33 | | |
$ | 16,410 | |
Total liabilities and stockholders’ equity | |
$ | 19,391 | | |
$ | 302 | | |
$ | 19,693 | |
Recently Issued and Not Yet Adopted
Accounting Pronouncements
In August 2020, the FASB issued ASU
2020-06 “Debt - Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging - Contracts in Entity’s
Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity”. This ASU simplifies
accounting for convertible instruments by removing major separation models required under current U.S. GAAP. Consequently, more convertible
debt instruments will be reported as a single liability instrument and more convertible preferred stock as a single equity instrument
with no separate accounting for embedded conversion features. The ASU removes certain settlement conditions that are required for equity
contracts to qualify for the derivative scope exception, which will permit more equity contracts to qualify for the exception. The ASU
also simplifies the diluted earnings per share (EPS) calculation in certain areas. As an emerging growth company, the Company is allowed
to adopt the accounting pronouncement at the same time as non-public business entities. As a result, the Company will adopt the update
for its fiscal year beginning after December 15, 2023. The Company is evaluating the impact of this standard on its consolidated financial
statements.
In June 2016, the FASB issued ASU
2016-13, Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments, as amended, which requires
the early recognition of credit losses on financing receivables and other financial assets in scope. ASU 2016-13 requires the use of
a transition model that will result in the earlier recognition of allowances for losses. The new standard is effective for fiscal years
beginning after December 15, 2022. Management is currently evaluating the new standard and its possible impact on the Company’s
consolidated financial statements.
We have reviewed other recent accounting
pronouncements and concluded they are either not applicable to the business, or no material effect is expected on the consolidated financial
statements as a result of future adoption.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
The consolidated financial statements
of the Company have been prepared on a going concern basis, which contemplates the realization of assets and the discharge of liabilities
in the normal course of business. The Company has incurred net operating losses each year since inception. As of December 31, 2022, the
Company had cash and cash equivalents of $2.9 million and reported net cash used in operations of $17.5 million during the
year ended December 31, 2022. The Company expects operating losses to continue in the foreseeable future because of additional costs
and expenses related to research and development activities, plans to expand its product portfolio, and increase its market share. The
Company’s ability to transition to attaining profitable operations is dependent upon achieving a level of revenues adequate to
support its cost structure.
Based on current operating levels,
the Company will need to raise additional funds in the next 12 months by selling additional equity or incurring debt. To date, the Company
has funded its operations primarily through sales of its securities in public markets, proceeds from the exercise of warrants to purchase
common stock and the sale of convertible notes. Additionally, future capital requirements will depend on many factors, including the
rate of revenue growth, the selling price of the Company’s products, the expansion of sales and marketing activities, the timing
and extent of spending on research and development efforts and the continuing market acceptance of the Company’s products. These
factors raise substantial doubt about the Company’s ability to continue as a going concern for the twelve months from the date
of this report.
Management of the Company intends
to raise additional funds through the issuance of equity securities or debt. There can be no assurance that, in the event the Company
requires additional financing, such financing will be available at terms acceptable to the Company, if at all. Failure to generate sufficient
cash flows from operations, raise additional capital and reduce discretionary spending could have a material adverse effect on the Company’s
ability to achieve its intended business objectives. As a result, the substantial doubt about the Company’s ability to continue
as a going concern has not been alleviated. The accompanying consolidated financial statements do not include any adjustments that might
be necessary if the Company is unable to continue as a going concern.
3. |
Balance Sheet Components |
Inventories (in thousands):
| |
December 31, | |
| |
2022 | | |
2021 | |
Raw materials | |
$ | 3,043 | | |
$ | 2,057 | |
Work in progress | |
| 13 | | |
| 1,403 | |
Finished goods | |
| 4,014 | | |
| 1,320 | |
Total inventories | |
$ | 7,070 | | |
$ | 4,780 | |
Property and equipment, net (in thousands):
| |
December 31, | |
| |
2022 | | |
2021 | |
Machinery and equipment | |
$ | 691 | | |
$ | 965 | |
Leasehold improvements | |
| 127 | | |
| 40 | |
Tooling | |
| 11 | | |
| 11 | |
Computer software | |
| — | | |
| 89 | |
Furniture and fixtures | |
| — | | |
| 15 | |
| |
| 829 | | |
| 1,120 | |
Less: Accumulated depreciation and amortization | |
| (655 | ) | |
| (958 | ) |
Property and
equipment, net | |
$ | 174 | | |
$ | 162 | |
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
3. |
Balance Sheet Components, continued |
Depreciation and amortization expense
for the years ended December 31, 2022 and 2021 was $122,000 and $79,000, respectively. The cost and accumulated depreciation of
assets acquired under capital lease included in machinery and equipment in the above table as of December 31, 2022 were $72,000 and
$56,000, respectively. The cost and accumulated depreciation of assets acquired under capital lease included in machinery and equipment
in the above table as of December 31, 2021 were $72,000 and $32,000, respectively.
Accrued liabilities (in thousands):
| |
December 31, | |
| |
2022 | | |
2021 | |
Accrued vacation | |
$ | 422 | | |
$ | 385 | |
Accrued rebate | |
| 215 | | |
| 356 | |
Accrued audit fees | |
| 179 | | |
| 191 | |
Accrued lease liability, current portion | |
| 169 | | |
| — | |
Accrued compensation | |
| 136 | | |
| 231 | |
Customer advance | |
| 44 | | |
| — | |
Accrued legal fees | |
| 43 | | |
| — | |
Accrued other | |
| 424 | | |
| 253 | |
Total accrued
liabilities | |
$ | 1,632 | | |
$ | 1,416 | |
Convertible Promissory Note
On August 15, 2022, the Company entered
into a Securities Purchase Agreement (the “August Purchase Agreement”), by and between the Company and an institutional investor
(the “Investor”), pursuant to which the Company agreed to issue to the Investor a senior secured convertible note in the
principal amount of $3,600,000 (the “Convertible Note”) and a warrant (the “ August Warrant”) to purchase
up to 20,970 shares of the Company’s common stock, at an exercise price of $99.70 per share (the “Exercise
Price”), in consideration for $3,000,000. Pursuant to the August Purchase Agreement, upon the closing of the private placement,
pursuant to which Maxim Group LLC (“Maxim”) acted as placement agent (the “Private Placement”), the Company received
gross proceeds of $3,000,000. After the deduction of banker fees, commitment fees and other expenses associated with the transaction,
the Company received net proceeds of $2,483,000. The Company used the net proceeds primarily for working capital and general corporate
purposes.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
The Convertible Note matures on August
15, 2024, does not bear interest and ranks senior to the Company’s existing and future indebtedness and is secured to the extent
and as provided in the Security Agreements. The Convertible Note is convertible in whole or in part at the option of the Convertible
Note Investor into shares of Common stock (the “Conversion Shares”) at the Conversion Price (as defined below) at any time
following the date of issuance of the Convertible Note. The Convertible Note defines “Conversion Price” as equal to the lesser
of (a) 90% of the average of the five lowest daily VWAPs (as defined in the Convertible Note) during the previous twenty trading
days prior to delivery to the Company of the Convertible Note Investor’s applicable notice of conversion (the “Conversion
Notice”) and(b) $92.60 (the “Base Conversion Price”). The Base Conversion Price is subject to full ratchet antidilution
protection, subject to a floor conversion price of $0.50 per share (the “Floor Price”), a limitation required by the
rules and regulations of Nasdaq, and certain exceptions upon any subsequent transaction at a price lower than the Base Conversion Price
then in effect and standard adjustments in the event of stock dividends, stock splits, combinations or similar events; provided that
in the event the Conversion Price equals the Floor Price, the Company is required to pay the Convertible Note Investor a cash amount
determined pursuant to a formula in the Convertible Note, and provided further that the Floor Price will not apply in the event that
the Company obtains Stockholder Approval (as defined in the August Purchase Agreement) in accordance with Nasdaq rules. At any time after
the closing date of the Private Placement, in the event that the Company issues or sells any shares of common stock or common stock Equivalents
(as defined in the Convertible Note), subject to certain exceptions, at an effective price per share lower than the Base Conversion Price
then in effect or without consideration, then the Base Conversion Price shall be reduced to the price per share paid for such shares
of common stock or common stock Equivalents. Additionally, upon three days’ written notice to the holder after receipt of
a Conversion Notice, in lieu of delivering Conversion Shares, the Company has the right to pay the Convertible Note Investor in cash
an amount equal to 105% of the portion of the outstanding principal amount stated in such Conversion Notice. Further, at the Convertible
Note Investor’s option, the Convertible Note is convertible into shares of common stock or redeemable for 103% of the portion
of the outstanding principal amount to be converted in the event that any transaction causes the Conversion Price to be lower than the
Floor Price. Subject to certain exceptions, commencing on the Conversion Trigger Date and for a nine-month period after such
date, the Convertible Note Investor may convert only up to an aggregate of $250,000 in outstanding principal amount during any calendar
month, provided, that if Stockholder Approval has been obtained, the Convertible Note is in default at the time or the Company meets
certain capitalization conditions, such conversion limitation would not apply.
The obligations and performance of
the Company under the Convertible Note and the August Purchase Agreement are secured by: (a) a senior lien granted pursuant to security
agreements between the Convertible Note Investor and the Company, on (a) all of the assets of the Company (b) a senior lien granted pursuant
to trademark security agreements between the Convertible Note Investor and the Company; (c) a senior lien granted pursuant to a patent
security agreement between the Convertible Note Investor and the Company on all of the patent assets of the Company; and (d) a pledge
of certain securities pursuant to a pledge agreement between the Convertible Note Investor, the Company (such agreements listed in (a)-(d)
above, collectively, the “Security Agreements”). The payment and performance obligations of the Company under the Convertible
Note and the August Purchase Agreement are guaranteed pursuant to a guaranty by the Company in favor of the Convertible Note Investor.
In connection with the Private Placement,
the Company issued warrants to the Convertible Note Investor and Maxim to purchase common shares of 20,970 and 1,944, respectively
(see Note 6 – Fair Value Measurements). The sum of the fair value of the warrants, the original issue discount for interest, issuance
costs and the derivative liability for the embedded conversion feature for the August 2022 Notes were recorded as debt discounts totaling
$2,509,000 to be amortized to interest expense over the respective term using the effective interest method. During the year ended
December 31, 2022, the Company recognized $879,000 of interest expense from the amortization of debt discounts. As of December 31,
2022 the net unamortized debt discounts totaled $1,630,000, and the net carrying value of the convertible note payable was $457,000.
In connection with the Private Placement,
the Company entered into a placement agency agreement with Maxim (the “Placement Agency Agreement”), and agreed to issue
to Maxim, a warrant to purchase up to an aggregate of 1,944 shares of Common Stock (the “Maxim Warrant”) at an
exercise price of $99.70 per share, which is exercisable at any time on or after the six-month anniversary of the closing
date of the Private Placement and will expire on the fifth (5th) anniversary of its date of issuance.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
Effective August 24, 2022, the Company
and the Investor agreed to amend Section 3.1(b) of the Convertible Note to provide that the Conversion Price could not be lower than
the Floor Price until stockholder approval has been obtained, after which stockholder approval the Floor Price may be reduced to no lower
than $0.25, subject to adjustment pursuant to the terms of the August 2022 Note. The changes were effected by cancellation of the Convertible
Note and the issuance of a replacement senior secured convertible note (the “New Convertible Note”) to the Investor. The
New Convertible Note contains identical terms as the Convertible Note, except for the amendment to the Section 3.1(b).
On November 21, 2022, the Company
and Maxim entered into an agreement to amend the Maxim Warrant (the “Maxim Warrant Amendment”). Specifically, the Maxim Warrant
Amendment sets forth certain circumstances in which the lock up restrictions to which the Maxim Warrant is subject would not apply. The
Maxim Warrant Amendment also clarifies certain limitations with respect to demand registration rights, and provides that Maxim’s
piggy-back registration rights expire on the fifth (5th) anniversary of the Maxim Warrant’s date of issuance.
| |
Convertible | |
| |
Promissory Note | |
| |
December 31, 2022 | | |
December 31, 2021 | |
Convertible note payable | |
$ | 2,089 | | |
$ | — | |
Debt discount | |
| (1,632 | ) | |
| — | |
Net total | |
$ | 457 | | |
$ | — | |
The August 2022 Note contains several
embedded conversion features. The Company concluded that those conversion features require bifurcation from the Convertible Note and
subsequent accounting in the same manner as a freestanding derivative. The Company recognized a derivative liability of $286,000 upon
execution of the note agreement and such amount was included in the $2,509,000 of debt discounts noted above. Subsequent changes
in the fair value of these conversion features are measured at each reporting period and recognized in the consolidated statement of
operations. The Company recognized expense of $47,000 as the change in the fair value of the derivative liability during the year
ended December 31, 2022, and the balance of the derivative liability as of December 31, 2022 is $333,000.
On November 28, 2022, the Company
entered into a waiver of rights (the “Waiver”) with the Convertible Note Investor, pursuant to which the Convertible Note
Investor agreed to waive certain prohibitions under the August Purchase Agreement with respect to the offering of units in December 2022
in exchange for the issuance by the Company, on the closing date of such offering, of an additional number of Series A Warrants and an
additional number of Series B Warrants equal to the quotient obtained by dividing $750,000 by the public offering price for the
units sold in the offering (such Warrants, the “Waiver Warrants”).
In connection with the public offering
the Company consummated on December 1, 2022 (“December 2022 Offering”), the Company issued 53,572 Series A Warrants
and 53,572 Series B Warrants to the Convertible Note Investor (See Note 6). The Company’s obligation to issue shares
of common stock underlying the Waiver Warrants is expressly conditioned upon stockholder approval of all of the transactions contemplated
by the August Purchase Agreement (See Note 11 – Subsequent Events for additional information.)
Additionally, as a result of the December
2022 Offering, the Base Conversion Price was adjusted to the Floor Price.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
Payroll Protection Program Note
Agreement
On May 3, 2020, we received a loan
(the “PPP Loan”) from Wells Fargo Bank, National Association in the aggregate amount of $847,000, pursuant to the Paycheck
Protection Program (the “PPP”) under Division A, Title I of the Coronavirus Aid, Relief, and Economic Security Act, which
was enacted on March 27, 2020. The PPP Loan was funded on May 7, 2020. The PPP Loan, which is in the form of a PPP promissory note and
agreement, dated May 3, 2020 (the “PPP Note Agreement”), had a maturity date of May 3, 2022 and bore interest at a rate of 1.00%
per annum. Pursuant to a change in guidance by the U.S. Small Business Administration, the initial monthly payment date of the PPP Note
Agreement was deferred from November 1, 2020 to August 18, 2021. The PPP Loan could be prepaid by us at any time prior to maturity with
no prepayment penalties. During the third quarter of 2021, the Company received full loan forgiveness for obligations related to the
PPP Loan. The Company accounted for the PPP Loan as debt, and the loan forgiveness was accounted for as a debt extinguishment. The amount
of loan and interest forgiven totaling $859,000, was recognized as a gain upon debt extinguishment and was reported in the accompanying
consolidated statements of operations for the year ended December 31, 2021.
5. |
Fair Value Measurements |
The Company measures the fair value
of financial instruments using a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value
into three broad levels. Each level of input has different levels of subjectivity and difficulty involved in determining fair value.
|
● |
Level
1 – Inputs used to measure fair value are unadjusted quoted prices that are available in active markets for the identical assets
or liabilities as of the reporting date. Therefore, determining fair value for Level 1 investments generally does not require significant
judgment, and the estimation is not difficult. |
|
● |
Level
2 – Pricing is provided by third-party sources of market information obtained through investment advisors. The Company does
not adjust for or apply any additional assumptions or estimates to the pricing information received from its advisors. |
|
● |
Level
3 – Inputs used to measure fair value are unobservable inputs that are supported by little or no market activity and reflect
the use of significant management judgment. These values are generally determined using pricing models for which the assumptions
utilize management’s estimates of market participant assumptions. The determination of fair value for Level 3 instruments involves
the most management judgment and subjectivity. |
The Company’s financial assets
and liabilities that are measured at fair value on a recurring basis as of December 31, 2022 and 2021 by level within the fair value
hierarchy, are as follows:
(in thousands) | |
December 31, 2022 | |
| |
| | |
Significant | | |
| |
| |
Quoted prices | | |
other | | |
Significant | |
| |
in active | | |
observable | | |
unobservable | |
| |
markets | | |
inputs | | |
inputs | |
| |
(Level 1) | | |
(Level 2) | | |
(Level 3) | |
Liabilities: | |
| | | |
| | | |
| | |
Derivative
liability | |
$ | — | | |
$ | — | | |
$ | 333 | |
Warrant liabilities | |
$ | — | | |
$ | — | | |
$ | 8,945 | |
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
5. |
Fair Value Measurements, continued |
(in thousands) | |
December 31, 2021 | |
| |
| | |
Significant | | |
| |
| |
Quoted prices | | |
other | | |
Significant | |
| |
in active | | |
observable | | |
unobservable | |
| |
markets | | |
inputs | | |
inputs | |
| |
(Level 1) | | |
(Level 2) | | |
(Level 3) | |
Liabilities: | |
| | | |
| | | |
| | |
Warrant liability | |
$ | — | | |
$ | — | | |
$ | 8 | |
There were no transfers
between Level 1, 2 or 3 during the years ended December 31, 2022 or 2021.
Derivative Liability
As described previously in Note 4,
the conversion provisions embedded in the Convertible Note require bifurcation and measurement at fair value as a derivative. The fair
value was calculated using a Monte Carlo simulation to create a distribution of potential market capitalizations and share prices for
the Company on a weekly basis over the assumed period, given the various scenarios. The average value of the Convertible Note was discounted
to the valuation date to determine a calibrated discount rate so that the fair value of the Convertible Note was $3 million. The
value of the Convertible Note was compared with the value of a hypothetical note with no conversion rights in order to determine the fair
value of the conversion feature.
As of December 31, 2021, the Company
did not have a derivative liability. The Series A Preferred Stock was exchanged for common stock and warrants during the year ended
December 31, 2021, thereby eliminating the conversion feature which gave rise to the derivative. Prior to the exchange, the Company had
measured the fair value of the derivative by estimating the fair value of the Series A Preferred Stock as if conversion occurred at the
end of the reporting period. The Company calculated the value of the conversion feature using the Fixed Conversion Price of the Series
A Preferred Stock, as adjusted to 95% of the volume weighted average price of the common stock for the previous ten trading
days constrained by the specified floor price of $30.00. The changes in the fair value of the derivative liability for the years ended
December 31, 2022 and 2021 were as follows:
| |
For the year ended December 31, | |
(in thousands) | |
2022 | | |
2021 | |
Beginning balance | |
$ | — | | |
$ | 387 | |
Additions | |
| 286 | | |
| — | |
Change in fair value | |
| 47 | | |
| (387 | ) |
Ending balance | |
$ | 333 | | |
$ | — | |
The changes in fair value of the derivative
liability are recorded in change in fair value of derivative liability in the consolidated statements of operations.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
5. |
Fair Value Measurements, continued |
Warrant Liabilities
The following table includes a summary
of changes in fair value of the Company’s warrant liabilities measured at fair value using significant unobservable inputs (Level
3) for the years ended December 31, 2022 and 2021:
| |
For The
Year Ended December 31, | |
(in thousands) | |
2022 | | |
2021 | |
Beginning balance | |
$ | 8 | | |
$ | 8 | |
Additions | |
| 11,789 | | |
| — | |
Change in fair value | |
| (2,852 | ) | |
| — | |
Ending balance | |
$ | 8,945 | | |
$ | 8 | |
The changes in fair value of the warrant
liabilities are recorded in change in fair value of warrant liability in the consolidated statements of operations.
6. |
Convertible Preferred
Stock and Stockholders’ Equity |
Series A 8% Senior Convertible Preferred Stock
On April 18, 2019, we entered into
a Securities Purchase Agreement, dated as of April 18, 2019, with an investor (the “Preferred Investor”) (the “Preferred
SPA”), pursuant to which we issued 250,000 shares of our Series A 8% Senior Convertible Preferred Stock, par value
$0.0001 per share (the “Series A Preferred Stock”). In connection with the Preferred SPA, the Company also issued to
the Preferred Investor a warrant to purchase 128 shares of our common stock.
On June 4, 2021, the Company and the
Preferred Investor entered into an exchange agreement pursuant to which the Company exchanged with the Preferred Investor, all outstanding
shares of Series A Preferred Stock, for 250,000 shares of common stock and warrants to purchase up to 1,875 shares
of common stock. In connection with exchange agreement the Company recorded a deemed dividend of $1,192,000. Immediately following the
exchange, the Company no longer had a derivative liability or any preferred stock outstanding.
On August 31, 2022, the Company filed
an Elimination of Certificate of Designations of the Preferences, Rights and Limitations of the Series A 8% Senior Convertible Preferred
Stock (the “Series A Elimination Certificate”) in order to eliminate and cancel all designations, rights, preferences and
limitations of the shares of the Series A 8% Preferred Stock. Prior to the filing of the Series A Elimination Certificate, none
of the 1,250,000 authorized shares of Series A Preferred Stock were issued and outstanding, and no shares
of Series A Preferred Stock were to be issued subject to the Series A Certificate of Designations. The Series A Elimination Certificate
became effective upon its filing with the Secretary of State of the State of Delaware.
As of December 31, 2022, there are no shares
of preferred stock issued or outstanding.
Common Stock
Carve-Out Plan
For the three months ended March 31,
2021, 352 shares of restricted stock issued under the Carve-Out Plan (the “Carve-Out Plan”), were released with
an intrinsic value of approximately $2,000. No shares were subsequently issued under the Plan.
2018 Long Term Stock Incentive Plan
On January 30, 2018, the Company’s
board of directors approved the establishment of the Company’s 2018 Long-Term Stock Incentive Plan (the “LTIP”) and
termination of its Carve-Out Plan. Under the LTIP, the aggregate maximum number of shares of common stock (including shares underlying
options) that may be issued under the LTIP pursuant to awards of Restricted Shares or Options will be limited to 15% of the outstanding
shares of common stock, which calculation shall be made on the first trading day of each new fiscal year; provided that, in any year
no more than 8% of the common stock or derivative securitization with common stock underlying 8% of the common stock may be
issued in any fiscal year. Thereafter, the 15% evergreen provision governs the LTIP. For fiscal year 2023, up to 108,373 shares
of common stock are available for participants under the LTIP as of January 1, 2023. (See Note 11 regarding the amendments to the LTIP.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
6. |
Convertible Preferred
Stock and Stockholders’ Equity, continued |
For the year ended December 31, 2022, 5,404 shares
of restricted stock issued under the LTIP, were released with an intrinsic value of approximately $324,000. For the year ended December
31, 2021, 330 shares of restricted stock were released with an intrinsic value of approximately $97,000.
A summary of activity related to restricted
stock awards (excluding the deferred shares) for the years ended December 31, 2022 and 2021 is presented below:
| |
| | |
Weighted-Average | |
Stock Awards | |
Shares | | |
Grant Date Fair Value | |
Non-vested as of January 1, 2021 | |
| 900 | | |
$ | 226.00 | |
Granted | |
| 6,807 | | |
$ | 353.00 | |
Vested | |
| (330 | ) | |
$ | 231.00 | |
Forfeited | |
| (49 | ) | |
$ | 308.00 | |
Non-vested as of December 31, 2021 | |
| 7,328 | | |
$ | 343.36 | |
Granted | |
| 12,784 | | |
$ | 118.30 | |
Vested | |
| (5,404 | ) | |
$ | 227.96 | |
Forfeited | |
| (601 | ) | |
$ | 206.26 | |
Non-vested as of December 31, 2022 | |
| 14,107 | | |
$ | 189.45 | |
As of December 31, 2022, the unamortized
compensation costs related to the unvested restricted stock awards was approximately $2,033,000 which is to be amortized on a straight-line
basis over a weighted-average period of approximately 2.0 years.
2020 Stock Incentive Plan
On July 27, 2020, the board of directors
adopted the Company’s 2020 Stock Incentive Plan (the “2020 Stock Plan”) and the reservation of an aggregate of 6,500 shares
of the Company’s common stock authorized for issuance under the 2020 Stock Plan, subject to stockholder approval. The 2020 Stock
Plan authorizes the grant of equity-based compensation to the Company’s senior managers, employees, directors, consultants, professionals
and service providers in the form of stock options, restricted stock and restricted stock units. On July 27, 2020, the Company also granted,
subject to stockholder approval, an aggregate of 6,148 restricted stock units to senior managers, employees, directors, consultants.
Each of the awards are scheduled to vest on the first, second, and third anniversaries of August 15, 2020, so long as such award recipient
remains in service of the Company on each such anniversary. Each restricted stock unit represents the right to receive one share
of the Company’s common stock under the 2020 Stock Plan. On October 20, 2020, the Company held the 2020 Annual Meeting of Stockholders
and approved the adoption of the 2020 Stock Plan and the reservation of an aggregate of 6,500 shares of the Company’s
common stock. In connection with the approval, the Company issued 6,148 restricted stock units to employees, directors and
consultants.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
6. |
Convertible Preferred
Stock and Stockholders’ Equity, continued |
A summary of activity related to restricted
stock units under the Company’s 2020 Stock Plan for the years ended December 31, 2022 and 2021 is presented below:
| |
| | |
Weighted-Average | |
Stock Units | |
Shares | | |
Grant Date Fair Value | |
Non-vested as of January 1,2021 | |
| 6,309 | | |
$ | 229.00 | |
Granted | |
| 208 | | |
$ | 381.00 | |
Vested | |
| (2,114 | ) | |
$ | 244.00 | |
Forfeited | |
| — | | |
$ | — | |
Non-vested as of December 31, 2021 | |
| 4,403 | | |
$ | 235.74 | |
Granted | |
| — | | |
$ | — | |
Vested | |
| (2,104 | ) | |
$ | 233.65 | |
Forfeited | |
| (138 | ) | |
$ | 227.00 | |
Non-vested as of December 31, 2022 | |
| 2,161 | | |
$ | 238.33 | |
As of December 31, 2022, the unamortized
compensation costs related to the unvested restricted stock units under the Company’s 2020 Stock Plan was approximately $321,000 which
is to be amortized on a straight-line basis over a weighted-average period of approximately 0.7 years.
For the year ended December 31, 2022, 2,104 shares
of restricted stock units were released under the 2020 Stock Plan with an intrinsic value of approximately $68,000. For the year ended
December 31, 2021, 2,114 shares of restricted stock units were released under the 2020 Stock Plan with an intrinsic value of
approximately $661,000.
Inducement Grant
On September 13, 2021, the Company
issued 3,100 shares of restricted common stock to Eric Almgren, the Company’s Chief Strategist, as an inducement grant
(“September 2021 Inducement Grant”). Such shares were issued outside the Company’s LTIP and the 2020 Stock Plan. In
accordance with the September 2021 Inducement Grant, 775 shares will vest monthly over a period of 36 months and
the remaining 2,325 will vest in 775 increments, upon the achievement of certain company milestones related to the
volume weighted average closing price per share of the Company’s common stock, as reported on NASDAQ, for the ten (10) consecutive
days in which thresholds of the Company’s market capitalization of $75 million, $100 million and $150 million are
achieved. The September 2021 Inducement Grant was valued with an approximate value of $772,000 and is being amortized over 36
months.
On August 24, 2022, the September
2021 Inducement Grant’s vesting milestones related to the Company’s market capitalization were revised to $50 million,
$75 million and $100 million. This revision was treated as a modification of the original award and the incremental value recorded
was not significant. As of December 31, 2022, the unamortized compensation cost related to the unvested September 2021 Inducement Grant
was approximately $440,000 which is being amortized on a straight-line basis over a period of approximately 1.7 years.
The Company recorded stock-based compensation of $256,000, related to this grant for the year ended December 31, 2022. As of December
31, 2022, 2,778 shares are unvested. For the year ended December 31, 2022, 258 shares of restricted stock were released
under the September 2021 Inducement Grant with an intrinsic value of approximately $14,000.
2022 Plan
On June 21, 2022, the Board of Directors
adopted the Company’s Technical Team Retention Plan of 2022 (the “2022 Plan”) and the reservation of an aggregate of 5,000 shares
of the Company’s common stock authorized for issuance under the 2022 Plan, subject to stockholder approval. The 2022 Plan authorizes
the grant of equity-based compensation, to the Company’s key managers, employees, consultants who provide technical and engineering
and related services to the Company, in the form of restricted stock and restricted stock units. On August 19, 2022, the Company held
the 2022 Annual Meeting of Stockholders and approved the adoption of the 2022 Plan and the reservation of an aggregate of 5,000 shares
of the Company’s common stock. On September 19, 2022, the Company granted, an aggregate of 3,700 restricted stock units
to managers, employees, consultants. Each restricted stock unit represents the right to receive one share of the Company’s
common stock under the 2022 Plan.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
6. |
Convertible Preferred
Stock and Stockholders’ Equity, continued |
A summary of activity related to restricted
stock units under the Company’s 2022 Plan for the year ended December 31, 2022 is presented below:
| |
| | |
Weighted-Average | |
Stock Units | |
Shares | | |
Grant Date Fair Value | |
Non-vested as of January 1, 2022 | |
| — | | |
$ | — | |
Granted | |
| 3,700 | | |
$ | 52.00 | |
Vested | |
| — | | |
$ | — | |
Forfeited | |
| — | | |
$ | — | |
Non-vested as of December 31, 2022 | |
| 3,700 | | |
$ | 52.00 | |
As of December 31, 2022, the unamortized
compensation cost related to the unvested restricted stock units was approximately $178,000 which is to be amortized on a straight-line
basis over a weighted-average period of approximately 3.5 years.
July 2021 Registered Direct Offering
On July 22, 2021, the Company entered
into a securities purchase agreement (the “July 22nd Purchase Agreement”) with several accredited investors providing for
the issuance of 25,000 shares of the Company’s common stock. Pursuant to the July 22nd Purchase Agreement, the investors
purchased all of the securities sold thereby for an aggregate purchase price of $10,000,000. The offering of the securities pursuant
to the July 22nd Purchase Agreement was closed on July 27, 2021, with the Company receiving net proceeds of $9,026,000. Maxim acted as
the placement agent. The Company paid Maxim Group LLC (“Maxim”) a fee of approximately $800,000, which was equal to 8%
of the aggregate purchase price paid by investors placed by Maxim and certain expenses. The July 22nd Purchase Agreement contains customary
representations, warranties and agreements of the Company and the investors and customary indemnification rights and obligations of the
parties thereto.
ATM Agreements
On December 30, 2021, the Company
entered into a Sales Agreement with Maxim (the “2021 Sales Agreement”), pursuant to which the Company may issue and sell
shares of its common stock having an aggregate offering price of up to $4,500,000 from time to time through Maxim. The Company terminated
the 2021 Sales Agreement on September 13, 2022. No shares of common stock were sold under the 2021 Sales Agreement.
On September 13, 2022, the Company
entered into a 2022 Sales Agreement (the “2022 Sales Agreement”) with Maxim, pursuant to which the Company may issue and
sell shares of its common stock having an aggregate offering price of up to $4,000,000 from time to time through Maxim (the “ATM
Program”). On January 30, 2023, the Company and Maxim agreed to terminate the 2022 Sales Agreement, effective that day. As of the
termination of the 2022 Sales Agreement, the Company had not sold any shares of common stock under the ATM Program.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
6. |
Convertible Preferred
Stock and Stockholders’ Equity, continued |
December 2022 Best-Efforts Offering
In connection with the consummation
of the December 2022 Offering, the Company issued an aggregate of 504,000 units (the “Units”) and 36,000 pre-funded
units (the “Pre-Funded Units”) at an effective public offering price of $14.00 per Unit, resulting in net proceeds of
approximately $6.4 million. Each Unit consists of (i) one share (the “Shares”) of common stock, par value $0.0001 per
share (“Common Stock”), (ii) one Series A Warrant (the “Series A Warrants”), and (iii) one Series
B Warrant (the “Series B Warrants” and, together with the Series A Warrants, the “Warrants”), each such Warrant
being exercisable from time to time for one Share of the Company’s common stock at an exercise price of $14.00 per
share. Each Pre-Funded Unit consists of (i) one pre-funded warrant (the “Pre-Funded Warrants”), each such Pre-Funded
Warrant being exercisable from time to time for one Share of the Company’s common stock, (ii) one Series A Warrant
and (iii) one Series B Warrant. The Warrants are immediately exercisable for one Share at an exercise price of $14.00 per
share, and will expire five (5) years after the date of issuance. The Pre-Funded Warrants were immediately exercisable for one Share
at an exercise price of $0.10 per share. The Pre-Funded Warrants were exercised immediately upon the closing of the December 2022
Offering, resulting in the issuance of 36,000 shares of common stock and additional proceeds of $3,600 to the Company.
The Share and accompanying Warrants
included in each Unit were issued separately, and the Pre-Funded Warrant and the accompanying Warrants included in each Pre-Funded Unit
were issued separately. The Units and Pre-Funded Units have no stand-alone rights and were not issued or certificated.
Subject to certain exemptions outlined
in the Warrants, if the Company sells, enters into an agreement to sell, or grants any option to purchase, or sells, enters into an agreement
to sell, or grants any right to reprice, or otherwise disposes of or issues (or announces any offer, sale, grant or any option to purchase
or other disposition) any shares of Common Stock or any other securities that are at any time convertible into, or exercisable or exchangeable
for, or otherwise entitle the holder thereof to receive, Common Stock, at an effective price per share less than the exercise price of
the Warrant then in effect, the exercise price of the Warrants will be reduced to equal the effective price per share in such dilutive
issuance. The Warrants contain a one-time reset of the exercise price to a price equal to the lesser of (i) the then exercise price and
(ii) 100% of the five- day volume weighted average prices for the five (5) trading days immediately preceding the
date that is sixty days after issuance of such Warrants. The Warrants are subject to certain call features and, in certain
circumstances, may be exercised on a cashless basis.
In connection with the December 2022
Offering, on November 29, 2022, the Company entered into a securities purchase agreement (the “December Purchase Agreement”)
with certain institutional investors. Under the December Purchase Agreement, subject to certain exemptions, the Company is prohibited,
until ninety (90) days after the closing of the offering, from issuing, entering into any agreement to issue or announcing
the issuance or proposed issuance of any shares of common stock or common stock equivalents (as defined in the December Purchase Agreement)
or (ii) filing any registration statement or amendment or supplement thereto under the Securities Act of 1933, as amended (the “Securities
Act”).
Also in connection with the December
2022 Offering, on November 29, 2022, the Company entered into a placement agency agreement (the “Placement Agency Agreement”)
with Maxim Group LLC (the “Placement Agent”), pursuant to which the Placement Agent agreed to act as placement agent on a
“best efforts” basis in connection with the offering. The Company paid the Placement Agent an aggregate fee equal to 8.0%
of the gross proceeds raised in the December 2022 Offering, and a non-accountable expense allowance equal to 1.0% of such gross
proceeds. The Company reimbursed the Placement Agent $100,000 for expenses in connection with the December 2022 Offering.
A registration statement on Form S-1
(the “Registration Statement”) relating to the Offering (File No. 333-268085) was initially filed with U.S. Securities and
Exchange Commission (the “SEC”) on November 1, 2022, and was declared effective by the SEC on November 29, 2022. The December
2022 Offering was made by means of a prospectus forming a part of the effective Registration Statement.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
6. |
Convertible Preferred
Stock and Stockholders’ Equity, continued |
Warrants for Common Shares
The Company has issued warrants to
purchase common shares to employees and consultants as compensation for services rendered, as well as, in conjunction with the purchase
of common shares in equity and debt transactions. A summary of the warrant activity and related information for the years ended December
31, 2022 and 2021 is provided as follows.
In January 2021, pursuant to the Company’s
solicitation of certain warrant holders, such warrant holders agreed to exercise warrants to purchase an aggregate of 12,217 shares
of common stock for net proceeds of approximately $2.9 million. In consideration for their exercise of these warrants, for cash,
the exercising holders were issued new warrants to purchase up to an aggregate of 385 shares of common stock, at an exercise
price of $420.00 per share, which are exercisable for a period of five years. The grant date fair value of those warrants was
$567,000, which was recorded as warrant inducement expense and an increase to additional paid-in capital on the accompanying consolidated
balance sheet. The fair value of such warrants was determined using the Black-Scholes Model based on the following weighted average assumptions:
common stock price on date of grant of $385.00; expected dividend yield of 0.0%; expected volatility of 60.1%; risk-free interest
rate of 0.45% and expected life of 5.0 years.
On April 18, 2019, the Company entered
into a Securities Purchase Agreement with the Preferred Investor, pursuant to which the Company issued 250,000 shares of our
Series A 8% Convertible Preferred Stock (the “Original Securities”). On June 4, 2021, the Company and the Preferred
Investor entered into that an exchange agreement pursuant to which the Company exchanged with the Preferred Investor the Original Securities
held by the investor for: (i) 2,500 shares of common stock and (ii) warrants to purchase up to 1,875 shares of Common
Stock. The warrants will be exercisable for a period of five (5) years and four (4) months. The exercise price with respect
to the warrants is $300.00 per share. The exercise price and the number of shares of common stock issuable upon exercise of the
warrants are subject to adjustment upon certain events, such as stock splits, combinations, dividends, distributions, reclassifications,
mergers or other corporate change and dilutive issuances. The grant date fair value of those warrants was $570,000, which was recorded
as loss on exchange of preferred stock and an increase to additional paid-in capital on the accompanying consolidated balance sheets.
The fair value of such warrants was determined using the Black-Scholes Model based on the following weighted average assumptions: common
stock price on date of grant of $477.00; expected dividend yield of 0.0%; expected volatility of 60.7%; risk-free interest
rate of 0.78% and expected life of 5.4 years.
In June 2021, pursuant to the Company’s
solicitation of certain warrant holders, such warrant holders agreed to exercise warrants to purchase an aggregate of 10,000 shares
of common stock for net proceeds of approximately $2.3 million. In consideration for their exercise of these warrants, for cash,
the exercising holders were issued new warrants to purchase up to an aggregate of 2,500 shares of common stock, at an exercise
price of $446.00 per share, which are exercisable for a period of five years. The grant date fair value of those warrants was
$579,000, which was recorded as warrant inducement expense and an increase to additional paid-in capital on the accompanying consolidated
balance sheet. The fair value of such warrants was determined using the Black-Scholes Model based on the following weighted average assumptions:
common stock price on date of grant of $450.00; expected dividend yield of 0.0%; expected volatility of 60.7%; risk-free interest
rate of 0.77% and expected life of 5.0 years.
In December 2021, the Company granted
a warrant to purchase up to 250 shares of common stock to Lippert/Heilshorn Associates Inc. The warrant has an exercise price
of $152.00 per share and are fully vested. The fair value of the warrant at issuance was $21,000. The fair value of the warrant
was estimated using the Black-Scholes Model based on the following weighted average assumptions: common share price on date of grant
$149.00, expected dividend yield 0%, expected volatility 67%, risk-free interest rate 1.19% and expected life of 5.0 years.
The fair value was recorded as professional services with the offset to additional paid-in capital.
In December 2021, the Company granted
a warrant to purchase up to 150 shares of common stock to Marketing by Design LLC. The warrant has an exercise price of $152.00 per
share and are fully vested. The fair value of the warrant at issuance was $12,000. The fair value of the warrant was estimated using
the Black-Scholes Model based on the following weighted average assumptions: common share price on date of grant $149.00, expected dividend
yield 0%, expected volatility 67%, risk-free interest rate 1.19% and expected life of 5.0 years. The fair value
was recorded as professional services with the offset to additional paid-in capital.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
6. |
Convertible Preferred
Stock and Stockholders’ Equity, continued |
In connection with the issuance of
the Convertible Note, the Company issued a warrant (“Convertible Note Warrant”) to the investor to purchase up to 20,970 shares
of the Company’s common stock, at an exercise price of $99.70 per share (see Note 4 – Borrowings). The Warrant is exercisable
immediately and will expire on the fifth (5th) anniversary of its date of issuance and may be exercised on a cashless basis in the event
of a fundamental transaction involving the Company or if the resale of the shares of common stock underlying the Warrant is not covered
by a registration statement. The Exercise Price is subject to full ratchet antidilution protection, subject to certain price limitations
required by Nasdaq rules and regulations and certain exceptions, upon any subsequent transaction at a price lower than the Exercise Price
then in effect and standard adjustments in the event of certain events, such as stock splits, combinations, dividends, distributions,
reclassifications, mergers or other corporate changes.
The grant date fair value of the Convertible
Note Warrant was $985,000, which was recorded as debt discount with the offset recorded to warrant liability on the consolidated balance
sheets. The Convertible Note Warrant was recorded as a liability due to the potential variability of its exercise price. The fair value
of such warrants was determined using the Black-Scholes Model based on the following weighted average assumptions: common stock price
on date of grant of $77.00; expected dividend yield of 0.0%; expected volatility of 80.3%; risk-free interest rate of 2.91%
and expected life of 5 years.
In connection with the December 2022
Offering, under which warrants to purchase common stock were issued with an exercise price of $14.00 per share, the exercise price
of the Convertible Note Warrant was reduced from $99.70 per share to the Floor Price of $50.00 per share as a result of the
full ratchet antidilution protection clause in the Convertible Note Warrant.
At December 31, 2022, the fair value
of the Convertible Note Warrant was $151,000. The Company determined the fair value of the warrant using the Black-Scholes Model based
on the following weighted average assumptions: common stock price on revaluation date of $11.00 ; expected dividend yield of 0.0%;
expected volatility of 89%; risk-free interest rate of 3.99% and expected life of 4.7 years. The change in the fair
value of the warrant liability was recorded to other income on the consolidated statements of operations.
In connection with the Convertible
Note, the Company issued a warrant to Maxim to purchase up to 1,944 shares of the Company’s common stock, at an exercise
price of $99.70 per share (see Note 4 – Borrowings). The grant date fair value of such warrants was $91,000, which was recorded
as debt discount with the offset recorded to additional paid-in capital on the consolidated balance sheets. The fair value of such warrants
was determined using the Black-Scholes Model based on the following weighted average assumptions: common stock price on date of grant
of 77.00; expected dividend yield of 0.0%; expected volatility of 80.3%; risk-free interest rate of 2.91% and expected
life of 5 years. The Warrant is exercisable at any time on or after the six-month anniversary of the closing date of the Private
Placement and will expire on the fifth (5th) anniversary of its date of issuance and may be exercised on a cashless basis in the event
that the shares of common stock underlying the warrant are not covered by a registration statement. In addition, the warrant includes
a registration rights provision granting Maxim the same registration rights granted to the Convertible Note investor pursuant to the
August Purchase Agreement. The exercise price is subject to adjustment upon certain events, such as stock splits, combinations, dividends,
distributions, reclassifications, mergers or other corporate changes.
In connection with the December 2022
Offering, the Company issued Series A warrants to the December 2022 investors to purchase up to 540,000 shares of the Company’s
common stock, at an exercise price of $14.00 per share. The grant date fair value of such warrants was $4,914,000, which was recorded
as a liability with the offset recorded to additional paid-in capital on the consolidated balance sheets. The fair value of such warrants
at issuance was determined using the Black-Scholes Model based on the following weighted average assumption: common stock price on date
of grant of $11.00; expected dividend yield of 0.0%; expected volatility of 89%; risk-free interest rate of 3.68% and
expected life of 5 years.
In connection with the December 2022
Offering, the Company issued Series B warrants to the December 2022 investors to purchase up to 540,000 shares of the Company’s
common stock, at an exercise price of $14.00 per share. The grant date fair value of such warrants was $4,914,000, which was recorded
as a liability with the offset recorded to additional paid-in capital on the consolidated balance sheets. The fair value of such warrants
was determined using the Black-Scholes Model based on the following weighted average assumption: common stock price on date of grant
of $11.00; expected dividend yield of 0.0%; expected volatility of 89%; risk-free interest rate of 3.68% and expected
life of 5 years.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
6. |
Convertible Preferred
Stock and Stockholders’ Equity, continued |
In December 2022, the Company issued
a Series A Warrant to the Convertible Note Investor to purchase up to 53,572 shares of the Company’s common stock, at
an exercise price of $14.00 per share (see Note 4 – Borrowings). The grant date fair value of such warrants was $488,000,
which was recorded as a liability with the offset recorded to additional paid-in capital on the consolidated balance sheets. The fair
value of such warrants was determined using the Black-Scholes Model based on the following weighted average assumption: common stock
price on date of grant of $11.00; expected dividend yield of 0.0%; expected volatility of 89%; risk-free interest rate of 3.68%
and expected life of 5 years.
In December 2022, the Company issued
a Series B Warrant to the Convertible Note Investor to purchase up to 53,572 shares of the Company’s common stock, at
an exercise price of $14.00 per share (see Note 4 – Borrowings). The grant date fair value of such warrants was $488,000,
which was recorded as a liability with the offset recorded to additional paid-in capital on the consolidated balance sheets. The fair
value of such warrants was determined using the Black-Scholes Model based on the following weighted average assumption: common stock
price on date of grant of $11.00; expected dividend yield of 0.0%; expected volatility of 89%; risk-free interest rate of 3.68%
and expected life of 5 years.
Information regarding warrants for
common stock outstanding and exercisable as of December 31, 2022 is as follows:
| |
Warrants | | |
Weighted Average | | |
Warrants | |
Exercise | |
Outstanding as of | | |
Remaining | | |
Exercisable as of | |
Price | |
December 31, 2022 | | |
Life (years) | | |
December 31, 2022 | |
$14.00 | |
| 1,187,145 | | |
| 4.92 | | |
| 1,080,001 | |
$50.00 | |
| 20,971 | | |
| 4.62 | | |
| 20,971 | |
$99.70 - $261.00 | |
| 18,434 | | |
| 2.64 | | |
| 16,390 | |
$300.00 - $980.00 | |
| 24,799 | | |
| 2.60 | | |
| 24,799 | |
$1,580.00 - $12,500.00 | |
| 1,766 | | |
| 0.29 | | |
| 1,766 | |
$31.55 | |
| 1,253,115 | | |
| 4.83 | | |
| 1,143,927 | |
*Weighted Average
During the year ended December 31,
2022, other than the exercise of the Pre-Funded Warrants described Note 6 – December 2022 Offering, warrant holders did not exercise
any warrants to purchase common stock.
Warrants exercisable as of December
31, 2022 exclude warrants to purchase 100 shares of common stock issued to a marketing firm, which vest upon the achievement
of certain milestones, warrants to purchase 1,944 shares of common stock issued to Maxim which will become exercisable on February
15, 2023, and warrants to purchase 107,144 shares of common stock issued to a Convertible Note Investor that require shareholder
approval prior to being exercisable (see Note 11 - Approval of Transactions Related to August 2022 Purchase Agreement). Additionally,
warrants to purchase 207 shares of common stock which are shown above with a price of $1,580.00 are pre-funded warrants
under which the holder must only pay $20.00 per share to complete the exercise.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
6. |
Convertible Preferred
Stock and Stockholders’ Equity, continued |
Information regarding warrants for
common stock outstanding and exercisable as of December 31, 2021 is as follows:
| |
Warrants | | |
Weighted Average | | |
Warrants | |
Exercise | |
Outstanding as of | | |
Remaining | | |
Exercisable as of | |
Price | |
December 31, 2021 | | |
Life (years) | | |
December 31, 2021 | |
$152.00 - $390.00 | |
| 35,397 | | |
| 3.56 | | |
| 35,297 | |
$420.00 - $980.00 | |
| 5,891 | | |
| 4.01 | | |
| 5,891 | |
$1,580.00 - $1,750.00 | |
| 956 | | |
| 1.06 | | |
| 956 | |
$2,480.00 - $9,900.00 | |
| 2,251 | | |
| 1.13 | | |
| 2,251 | |
$10,800.00 - $12,500.00 | |
| 504 | | |
| 0.90 | | |
| 504 | |
$735.58 | |
| 44,999 | | |
| 3.44 | | |
| 44,899 | |
*Weighted Average
Warrants exercisable as of December
31, 2021 exclude a warrant to purchase 100 shares of common stock issued to a marketing consulting firm. Such warrant will
vest in two tranches upon the achievement of certain milestones. Additionally, warrants to purchase 207 shares of common stock
which are shown above with a price of $1,580.00 are Pre-Funded Warrants under which the holder must only pay $20.00 per share
to complete the exercise.
The domestic and foreign components
of loss before provision for income taxes for the years ended December 31, 2022 and 2021 were as follows:
(in thousands) | |
2022 | | |
2021 | |
Domestic | |
$ | (16,149 | ) | |
$ | (11,818 | ) |
Foreign | |
| — | | |
| — | |
Total | |
$ | (16,149 | ) | |
$ | (11,818 | ) |
The following represent components
of the income tax expense for the years ended December 31, 2022 and 2021:
| |
Year Ended | | |
Year Ended | |
| |
December 31, | | |
December 31, | |
(in thousands) | |
2022 | | |
2021 | |
Current: | |
| | | |
| | |
Federal | |
$ | — | | |
$ | — | |
State | |
| 2 | | |
| 2 | |
Foreign | |
| — | | |
| — | |
Total current provision
for income taxes | |
$ | 2 | | |
$ | 2 | |
Deferred: | |
| | | |
| | |
Federal | |
| — | | |
| — | |
State | |
| — | | |
| — | |
Foreign | |
| — | | |
| — | |
Total deferred
provision for income taxes | |
| — | | |
| — | |
Total | |
$ | 2 | | |
$ | 2 | |
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
7. |
Income Taxes, continued |
Tax effects of temporary differences
that give rise to significant portions of the Company’s deferred tax assets at December 31, 2022 and 2021 are presented below:
| |
| | |
| |
| |
Year Ended | | |
Year Ended | |
| |
December 31, | | |
December 31, | |
| |
2022 | | |
2021 | |
Deferred tax assets: | |
| | | |
| | |
Net operating loss | |
$ | 17,664 | | |
$ | 13,846 | |
Accruals and reserves | |
| 201 | | |
| 142 | |
Amortization of intangible assets | |
| 2,196 | | |
| 1,283 | |
Stock based compensation | |
| 758 | | |
| — | |
Lease liability | |
| 53 | | |
| — | |
Other | |
| — | | |
| 355 | |
Gross deferred tax assets | |
| 20,872 | | |
| 15,626 | |
Valuation allowance | |
| (20,762 | ) | |
| (15,564 | ) |
Total deferred tax assets | |
| 110 | | |
| 62 | |
Deferred tax liabilities: | |
| | | |
| | |
Prepaid expenses | |
| (62 | ) | |
| (62 | ) |
Right-of-use assets | |
| (33 | ) | |
| — | |
Other | |
| (15 | ) | |
| — | |
Total deferred tax liabilities | |
| (110 | ) | |
| (62 | ) |
Net deferred tax assets | |
$ | — | | |
$ | — | |
The Company’s accounting for
deferred taxes involves the evaluation of a number of factors concerning the realizability of the Company’s net deferred tax assets.
The Company primarily considered such factors as the Company’s history of operating losses; the nature of the Company’s deferred
tax assets and the timing, likelihood and amount, if any, of future taxable income during the periods in which those temporary differences
and carryforwards become deductible. At present, the Company does not believe that it is “more-likely-than-not” that the
deferred tax assets will be realized; accordingly, a full valuation allowance was maintained, and no deferred tax assets were shown in
the accompanying consolidated balance sheets. The valuation allowance increased by $5,198,000 and $3,115,000 during the years
ended December 31, 2022 and 2021, respectively.
On March 27, 2020, the U.S. enacted
the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The CARES Act includes provisions relating to refundable
payroll tax credits, net operating loss carryback periods, alternative minimum tax credit refunds, modifications to the net interest
deduction limitations and technical corrections to the tax depreciation methods for qualified improvement property. On December 21, 2020,
the U.S. Congress passed the Consolidation Appropriations Act, 2021 (the “CAA Act”). The tax provisions under the CARES Act
and CAA Act, do not have a material impact on the consolidated financial statements given the existence of a full valuation allowance.
The CARES Act established the Paycheck
Protection Program (the “PPP Loan”). Under the terms of the CARES Act, PPP loan recipients can apply for and be granted forgiveness
for all or a portion of the loan granted under the PPP Loan. On May 3, 2020, the Company received the PPP loan from Wells Fargo Bank.
During the third quarter of 2021, the full amount of the PPP Loan was forgiven. The CARES Act specifically requires taxpayers to exclude
canceled indebtedness from gross income, and, accordingly, the debt forgiveness amount was treated as nontaxable.
On June 29, 2020, California Assembly
Bill 85 (“AB 85”) was signed into law, which suspends the use of California net operating losses and limits the use of California
research tax credits for tax years beginning in 2020 and before 2023. However, on February 9, 2022 California Senate Bill 113 (“SB
113”) was signed into law and removed the limitation on the net operating losses and credits for the 2022 year and allows, after
taxable years beginning on or after January 1, 2022, the ability to utilize net operating losses and credits. These changes did not
have a significant impact on the consolidated financial statements.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
7. |
Income Taxes, continued |
As of December 31, 2022, the Company
had federal net operating loss carryforwards of $61,968,000. The federal net operating loss carryforwards will carryforward indefinitely
but are subject to the 80% taxable income limitation.
As of December 31, 2022, the Company
had state net operating loss carryforwards of $60,756,000 which will begin to expire in 2038.
Utilization of the Company’s
net operating losses and credit carryforwards may be subject to annual limitations in the event of a Section 382 ownership change. Such
future limitations could result in the expiration of net operating losses and credit carryforwards before utilization as a result of
such an ownership change.
Provision for income taxes for the years
ended December 31, 2022 and 2021 differed from the amounts computed by applying the statutory federal income tax rate of 21%
to the loss before provision for income taxes as a result of the following:
| |
Year Ended
December 31, | |
| |
2022 | | |
2021 | |
Effective tax rate reconciliation: | |
| | | |
| | |
Income tax provision at statutory
rate | |
| 21.0 | % | |
| 21.0 | % |
State taxes, net of federal benefit | |
| — | | |
| — | |
Other permanent differences | |
| 3.5 | | |
| (8.0 | ) |
Change in valuation
allowance | |
| (24.5 | ) | |
| (20.2 | ) |
Provision for income taxes | |
| — | % | |
| — | % |
Tax positions are evaluated in a two-step
process. The Company first determines whether it is “more-likely-than-not” that a tax position will be sustained upon examination.
If a tax position meets the “more-likely-than-not” recognition threshold it is then measured to determine the amount of benefit
to recognize in the consolidated financial statements. The tax position is measured as the largest amount of benefit that is greater
than 50% likely of being realized upon ultimate settlement. The aggregate changes in the balance of gross unrecognized tax benefits,
which excludes interest and penalties, for the years ended December 31, 2022 and 2021 is zero.
The Company has not incurred any material
tax interest or penalties as of December 31, 2022. The Company does not anticipate any significant change within 12 months of this reporting
date of its uncertain tax positions. The Company is subject to taxation in the United States and various state jurisdictions. There are
no ongoing examinations by taxing authorities at this time. The Company’s various tax years 2018 through 2022 remain open for examination
by the federal and state authorities for three and four years, respectively, from the date of utilization of any net operating
loss carryforwards.
The Company recognizes interest and
penalties related to uncertain tax positions in the provision for income taxes. As of December 31, 2022 and 2021, the Company has
not accrued any penalties or interest related to uncertain tax positions.
8. |
Commitments and Contingencies |
Operating Leases
The Company leases office space under
a non-cancellable operating lease that expires in January 2024 and has an option to renew this lease, with renewal rates to
be negotiated. Operating lease rentals are expensed on a straight-line basis over the life of the lease beginning on the date we take
possession of the property. At lease inception, we determine the lease term by assuming the exercise of those renewal options that are
reasonably assured. The exercise of lease renewal options is at our sole discretion. The lease term is used to determine whether a lease
is financing or operating and is used to calculate straight-line rent expense. Additionally, the depreciable life of leasehold improvements
is limited by the expected lease term. Leases with an initial term of 12 months or less are not recorded on the consolidated
balance sheets; we recognize lease expense for these leases on a straight-line basis over the lease term.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
8. |
Commitments and Contingencies, continued |
The following table reflects our lease
assets and our lease liabilities at December 31, 2022 (in thousands):
| |
December 31, | | |
January 1, | |
| |
2022 | | |
2022 | |
Assets: | |
| | | |
| | |
Operating
lease right-of-use assets | |
$ | 120 | | |
$ | 212 | |
| |
| | | |
| | |
Liabilities: | |
| | | |
| | |
Operating lease
liabilities, current | |
$ | 154 | | |
$ | 148 | |
Operating lease liabilities, non-current | |
$ | 39 | | |
$ | 179 | |
Operating lease right-of-use assets
are included in other assets. Operating lease liabilities, current, are included in accrued liabilities and Operating lease liabilities,
non-current, are include in other liabilities on the consolidated balance sheets.
Lease Costs:
The components of lease costs were as follows (in thousands):
| |
Year Ended | |
| |
December 31, 2022 | |
Operating lease cost | |
$ | 100 | |
Short term lease cost | |
| 43 | |
Total lease cost | |
$ | 143 | |
As of December 31, 2022, the maturity
of operating lease liabilities was as follows (in thousands):
2023 | |
| 173 | |
2024 | |
| 29 | |
Total lease payments | |
| 202 | |
Less: Interest | |
| (9 | ) |
Present value of lease liabilities | |
$ | 193 | |
Lease Term and Discount Rate:
| |
December 31, 2022 | |
Weighted-average remaining lease term (in years) | |
| 1.1 | |
Weighted-average discount rate | |
| 8.0 | % |
Other Information:
Supplemental cash flow information related to leases was as follows
(in thousands):
| |
Year Ended | |
| |
December 31, 2022 | |
Operating cash outflows
from operating leases | |
$ | 153 | |
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
8. |
Commitments and Contingencies, continued |
Finance Lease
During August 2020, the Company entered
into a lease agreement for equipment under a finance lease with a term of 36 months. The equipment under the lease is collateral
for the agreement and is included within property and equipment, net on the consolidated balance sheets.
Future minimum lease commitments for
the finance lease as of December 31, 2022 are as follows (in thousands):
Payments due in: | |
| |
Year ending December 31, 2023 | |
$ | 15 | |
Total minimum lease payments | |
| 15 | |
Less: Amounts representing interest | |
| — | |
Present value of capital lease obligations | |
| 15 | |
Other liabilities | |
$ | — | |
Obligations under the finance lease
are included in accrued liabilities and other liabilities on the consolidated balance sheets.
Management Team Retention Bonus
On September 1, 2022, the “Company
adopted its Management Team Retention Bonus Plan (the “Retention Plan”), to incentivize certain management level employees
(the “Managers”) to remain intact through and shortly following a potential “Change of Control” (as defined in
the Retention Plan). The aggregate Retention Plan bonus amounts for all Managers is $1,250,000.
The Retention Plan provides that each
Manager is eligible to receive a lump sum cash amount under the Retention Plan, on the earlier of the six-month anniversary of the date
of a Change of Control or at the time of such Manager’s involuntary termination other than for “Cause” (as defined
in the Retention Plan) or termination for “Good Reason” (as defined in the Retention Plan). The Retention Plan will terminate
upon the earlier of June 30, 2023 if a Change of Control has not occurred by such date or upon the payment of all Retention Bonus Amounts.
As of December 31, 2022, no accrual has been made under the Retention Plan.
Contingencies
In the normal course of business,
the Company may become involved in legal proceedings. The Company will accrue a liability for such matters when it is probable that a
liability has been incurred and the amount can be reasonably estimated. When only a range of a possible loss can be established, the
most probable amount in the range is accrued. If no amount within this range is a better estimate than any other amount within the range,
the minimum amount in the range is accrued. The accrual for a litigation loss contingency might include, for example, estimates of potential
damages, outside legal fees and other directly related costs expected to be incurred.
The Company’s management does
not believe that any such matters, individually or in the aggregate, will have a materially adverse effect on the Company’s consolidated
financial statements.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
Helge Kristensen
Mr. Kristensen has served as a member
of the Company’s board of directors since 2010. Mr. Kristensen serves as vice president of Hansong Technology, an original device
manufacturer of audio products based in China, president of Platin Gate Technology (Nanjing) Co. Ltd, a company with focus on service-branding
in lifestyle products as well as pro line products based in China and co-founder and director of Inizio Capital, an investment company
based in the Cayman Islands.
For the years ended December 31, 2022
and 2021, Hansong Technology purchased modules from the Company of approximately $361,000 and $497,000, respectively, and made payments
to the Company of approximately $191,000 and $510,000, respectively. At December 31, 2022 and 2021, Hansong Technology owed the
Company approximately $170,000 and $0, respectively.
For the years ended December 31, 2022
and 2021, Hansong Technology sold speaker products to the Company of approximately $1,891,000 and $1,645,000, respectively, and
the Company made payments to Hansong Technology of approximately $1,831,000 and $1,060,000, respectively. At December 31, 2022 and
2021, the Company owed Hansong Technology approximately $874,000 and $790,000, respectively.
As of December 31, 2022 and 2021,
Mr. Kristensen owned less than 1.0% of the outstanding shares of the Company’s common stock.
David Howitt
Mr. Howitt has served as a member
of the Company's board of directors since December 2021. Mr. Howitt is founder and CEO of Meriwether Group LLC, (“Meriwether”),
a strategic consulting firm that works with disruptive consumer brands. Meriwether is the manager of Meriwether Accelerators LLC (“Meriwether
Accelerators”).
The Company is a party to a professional
services agreement with Meriwether Accelerators, dated as of January 15, 2022, pursuant to which, the Company has agreed to pay Meriwether
Accelerators (i) $7,500 per month for a period of six months; and (ii) issue 100 shares of common stock for each partnership
brought to fruition as a result of Meriwether Accelerators' services and introduction, for up to 400 shares of common stock,
which shares will have piggyback registration rights, in consideration for certain licensing services and strategic partnership collaborations
to be provided by Meriwether Accelerators as set forth in such agreement. For the year ended December 31, 2022, the Company paid Meriwether
Accelerators $45,000. As of December 31, 2022, the Company has not issued any shares of common stock to Meriwether Accelerators under
this agreement nor has it recorded any compensation expense related to the issuance of common stock.
As of December 31, 2022 and December
31, 2021, Mr. Howitt owned less than 1.0% of the outstanding shares of the Company's common stock.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
The Company operates in one business
segment. Our chief decision-maker, the President and Chief Executive Officer, evaluates our performance based on company-wide consolidated
results.
Net revenue from customers is designated
based on the geographic region to which the product is delivered. Net revenue by geographic region for the years ended December 31,
2022 and 2021 was as follows:
| |
For the year ended | |
| |
December 31, | |
(in thousands) | |
2022 | | |
2021 | |
Asia Pacific | |
$ | 1,762 | | |
$ | 4,829 | |
North America | |
| 515 | | |
| 1,157 | |
Europe | |
| 1,088 | | |
| 555 | |
Total | |
$ | 3,365 | | |
$ | 6,541 | |
Substantially all of our long-lived
assets are located in the United States.
NASDAQ Notifications
On January 18, 2023, the Company received
notice (the “January 18 Letter”) that Nasdaq had determined that as of January 18, 2023, the Company’s securities had
a closing bid price of $0.10 or less for ten consecutive trading days triggering application of Listing Rule 5810(c)(3)(A)(iii)
which states in part: if during any compliance period specified in Rule 5810(c)(3)(A), a company’s security has a closing bid price
of $0.10 or less for ten consecutive trading days, the Listing Qualifications Department shall issue a Staff Delisting
Determination under Rule 5810 with respect to that security (the “Low Priced Stocks Rule”). As a result, the Staff determined
to delist the Company’s securities from Nasdaq, unless the Company timely requests an appeal of the Staff’s determination
to a Hearings Panel (the “Panel”), pursuant to the procedures set forth in the Nasdaq Listing Rule 5800 Series.
The Company requested a hearing before
the Panel to appeal the January 18 Letter and to address all outstanding matters, including compliance with the Rule, the Low Priced
Stocks Rule and Nasdaq Listing Rule 5635(d). While the appeal process is pending, the suspension of trading of the Company’s common
stock will be stayed.
On February 13, 2023, the Company
received notice (the “February 13 Letter”) from Nasdaq that it had determined that the Company had cured its bid price deficiency
and now complies with the Minimum Bid Price Requirement, as the closing bid price of the Company’s common stock was at least
$1.00 per share for at least a minimum of 10 consecutive business days. The Company also believes that it is also in compliance
with the Low Priced Stocks Rule.
As a result of the February 13 Letter,
the Company now only needs to address the matter concerning the December 2022 Offering and Nasdaq Listing Rule 5635(d) at a hearing before
the Panel.
The Company attended a hearing before
the Nasdaq panel on March 9, 2023 and is currently waiting for Nasdaq to render a decision.
Approval of Reverse Stock Split
On January 24, 2023, the Company’s
stockholders approved an amendment to the Company’s certificate of incorporation, as amended, to effect a reverse stock split of
all outstanding shares of common stock by a ratio in the range of one-for-five to one-for-one hundred, to be determined in the sole
discretion of the Board of Directors of the Company. On January 24, 2023, the Company’s Board of Directors approved a one-for-one
hundred reverse stock split of all outstanding shares of common stock.
On January 26, 2023, the Company announced
that its Board of Directors had approved the Reverse Stock Split and it became effective on that date. The common stock began trading
on a split-adjusted basis on January 27, 2023.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2022
and 2021
11. | Subsequent Events, continued |
Amendments to 2018 Long-Term Stock Incentive Plan
On January 24, 2023, the Company’s
stockholders approved certain amendments to the Company’s 2018 Long-Term Stock Incentive Plan (the “LTIP”) to: (i)
increase the annual share limit of common stock that may be issued in any single fiscal year only for the 2023 fiscal year under the
LTIP from 8% of the shares of common stock outstanding to 15% of the shares of Common Stock outstanding (which amount equates
to the maximum amount that may be issued in the aggregate under the LTIP),; and (ii) permit immediately quarterly calculations based
on the number of shares of common stock outstanding as of the first trading day of each fiscal quarter, rather than solely as of the
first trading day of the fiscal year.
Approval of Transactions Related to August 2022 Purchase
Agreement
On January 24, 2023, the Company’s
stockholders approved the transactions related to the August Purchase Agreement which included the issuance of 20% or more of the
outstanding shares of common stock upon (i) conversion of the Convertible Note, as amended by the New Convertible Note, (ii) exercise
of the August Warrant, and (iii) exercise of the Waiver Warrant.
January 2023 Registered Direct
Offering and Concurrent Private Placement
On January 31, 2023, the Company entered
into a securities purchase agreement (the “January Purchase Agreement”) with certain institutional investors. Under the January
Purchase Agreement, the Company agreed to issue and sell to such investors (i) in a registered direct offering, 201,544 shares
of common stock and pre-funded warrants to purchase up to 381,762 shares of Common Stock, at an exercise price of $0.0001 per
share of Common Stock, and (ii) in a concurrent private placement, common stock purchase warrants (the “Private Placement Warrants”),
exercisable for an aggregate of up to 874,959 shares of common stock, at an exercise price of $10.49 per share of common
stock.
The Company received gross proceeds
of approximately $6.2 million before deducting placement agent fees and other offering expenses payable by the Company.
In connection with the offering, the
Company entered into an amendment (the “Amendment”) to the securities purchase agreement, dated as of November 29, 2022,
by and between the Company and certain institutional investors (the “November Purchase Agreement”) approved by a certain
investor (the “November Investor”) who purchased at least 50.1% in interest of the shares of Common Stock and the pre-funded
warrants to purchase shares of Common Stock, if any, based on the initial subscription amounts under the November Purchase Agreement,
pursuant to Section 5.5 of the November Purchase Agreement. Pursuant to the Amendment, Section 4.11 of the November Purchase Agreement,
which prohibits the Company’s ability to issue shares of Common Stock or Common Stock Equivalents (as defined in the November Purchase
Agreement) or filing any registration statement or amendment or supplement thereto under the Securities Act, until ninety (90) days after
the closing date of the transactions contemplated by the November Purchase Agreement, was amended to permit the offering discussed above
and the issuance and sale of the securities offered and sold in such offering.
Termination of ATM Program
On January 30, 2023, the Company and
Maxim agreed to terminate the 2022 Sales Agreement, effective that day. As of the termination of the 2022 Sales Agreement, the Company
had not sold any shares of common stock under the ATM Program.
August 2022 Note Conversions
On February 1, 2023, the holder of
the August 2022 Note converted a total principal amount of approximately $708,075 for shares of the Company’s common stock.
WISA TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED
BALANCE SHEETS
(in thousands, except share and per
share data)
| |
September 30, 2023 | | |
December 31, 2022 | |
| |
(unaudited) | | |
(1) | |
Assets | |
| | | |
| | |
Current Assets: | |
| | | |
| | |
Cash and cash equivalents | |
$ | 212 | | |
$ | 2,897 | |
Accounts receivable | |
| 433 | | |
| 273 | |
Inventories | |
| 3,169 | | |
| 7,070 | |
Prepaid expenses and other current
assets | |
| 942 | | |
| 890 | |
Total current assets | |
| 4,756 | | |
| 11,130 | |
Property and equipment, net | |
| 109 | | |
| 174 | |
Other assets | |
| 668 | | |
| 148 | |
Total assets | |
$ | 5,533 | | |
$ | 11,452 | |
| |
| | | |
| | |
Liabilities, Convertible Preferred Stock and Stockholders’
Equity/(Deficit) | |
| | | |
| | |
Current Liabilities: | |
| | | |
| | |
Accounts payable | |
$ | 1,958 | | |
$ | 2,042 | |
Accrued liabilities | |
| 1,205 | | |
| 1,632 | |
Short-term loan | |
| 629 | | |
| - | |
Total current liabilities | |
| 3,792 | | |
| 3,674 | |
Convertible note payable | |
| — | | |
| 457 | |
Warrant liabilities | |
| 221 | | |
| 8,945 | |
Derivative liability | |
| — | | |
| 333 | |
Other liabilities | |
| 635 | | |
| 39 | |
Total liabilities | |
| 4,648 | | |
| 13,448 | |
| |
| | | |
| | |
Commitments and contingencies (Note 8) | |
| | | |
| | |
Stockholders’ Equity/(Deficit): | |
| | | |
| | |
Common stock, par value $0.0001; 200,000,000 shares authorized; 6,579,957
and 712,564 shares issued and outstanding as of September 30, 2023 and December 31, 2022, respectively | |
| 7 | | |
| 7 | |
Additional paid-in capital | |
| 241,557 | | |
| 226,318 | |
Accumulated deficit | |
| (240,679 | ) | |
| (228,321 | ) |
Total stockholders’ equity/(deficit) | |
| 885 | | |
| (1,996 | ) |
Total liabilities and stockholders’
equity (deficit) | |
$ | 5,533 | | |
$ | 11,452 | |
(1) |
The condensed
consolidated balance sheet as of December 31, 2022 was derived from the audited consolidated balance sheet as of that date. |
Note: Share and per share amounts have been retroactively
adjusted to reflect the impact of a 1-for-100 reverse stock split effected in January 2023, as discussed in Note 1.
The accompanying notes are an integral
part of these condensed consolidated financial statements.
WISA TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED
STATEMENTS OF OPERATIONS
For the three and nine months ended
September 30, 2023 and 2022
(in thousands, except share and per
share data)
(unaudited)
| |
Three Months
Ended September 30, | | |
Nine Months
Ended September 30, | |
| |
2023 | | |
2022 | | |
2023 | | |
2022 | |
Revenue, net | |
$ | 769 | | |
$ | 937 | | |
$ | 1,663 | | |
$ | 2,449 | |
Cost of revenue | |
| 2,438 | | |
| 807 | | |
| 4,786 | | |
| 2,069 | |
Gross profit (deficit) | |
| (1,669 | ) | |
| 130 | | |
| (3,123 | ) | |
| 380 | |
Operating Expenses: | |
| | | |
| | | |
| | | |
| | |
Research and development | |
| 1,838 | | |
| 1,939 | | |
| 5,664 | | |
| 5,359 | |
Sales and marketing | |
| 1,404 | | |
| 1,539 | | |
| 3,787 | | |
| 4,165 | |
General and administrative | |
| 1,428 | | |
| 1,400 | | |
| 4,260 | | |
| 3,608 | |
Total operating expenses | |
| 4,670 | | |
| 4,878 | | |
| 13,711 | | |
| 13,132 | |
Loss from operations | |
| (6,339 | ) | |
| (4,748 | ) | |
| (16,834 | ) | |
| (12,752 | ) |
| |
| | | |
| | | |
| | | |
| | |
Interest expense, net | |
| (52 | ) | |
| (173 | ) | |
| (812 | ) | |
| (174 | ) |
Change in fair value of warrant liabilities | |
| 284 | | |
| 274 | | |
| 6,134 | | |
| 274 | |
Loss on debt extinguishment | |
| — | | |
| — | | |
| (837 | ) | |
| — | |
Other expense, net | |
| (4 | ) | |
| (2 | ) | |
| (7 | ) | |
| (7 | ) |
Loss before provision for income taxes | |
| (6,111 | ) | |
| (4,649 | ) | |
| (12,356 | ) | |
| (12,659 | ) |
Provision for income taxes | |
| — | | |
| — | | |
| 2 | | |
| 2 | |
Net loss | |
$ | (6,111 | ) | |
$ | (4,649 | ) | |
$ | (12,358 | ) | |
$ | (12,661 | ) |
Net loss - basic and diluted | |
$ | (0.97 | ) | |
$ | (30.85 | ) | |
$ | (2.96 | ) | |
$ | (84.55 | ) |
Weighted average number of common shares
used in computing net loss | |
| 6,322,464 | | |
| 150,705 | | |
| 4,179,089 | | |
| 149,751 | |
Note: Share and per share amounts have been retroactively
adjusted to reflect the impact of a 1-for-100 reverse stock split effected in January 2023, as discussed in Note 1.
The accompanying notes are an integral
part of these condensed consolidated financial statements.
WISA TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED
STATEMENTS OF STOCKHOLDERS’ EQUITY (DEFICIT)
For the three and nine months ended
September 30, 2023 and 2022
(in thousands, except share and per
share data)
(unaudited)
| |
Common
Shares | | |
Additional | | |
Accumulated | | |
Stockholders’ | |
| |
Shares | | |
Amount | | |
Paid-in
Capital | | |
Deficit | | |
Equity
(Deficit) | |
Balance as of December 31, 2022 | |
| 712,564 | | |
$ | 7 | | |
$ | 226,318 | | |
$ | (228,321 | ) | |
$ | (1,996 | ) |
Stock-based compensation | |
| — | | |
| — | | |
| 499 | | |
| — | | |
| 499 | |
Restricted stock awards cancelled | |
| (43 | ) | |
| — | | |
| — | | |
| — | | |
| — | |
Issuance of common stock in connection with convertible promissory
note | |
| 67,500 | | |
| — | | |
| 708 | | |
| — | | |
| 708 | |
Issuance of common stock in connection with warrant exercise | |
| 858,353 | | |
| — | | |
| 8,202 | | |
| — | | |
| 8,202 | |
Issuance of common stock and warrants, net of offering costs | |
| 1,420,513 | | |
| — | | |
| 1,271 | | |
| — | | |
| 1,271 | |
Net loss | |
| — | | |
| — | | |
| — | | |
| (921 | ) | |
| (921 | ) |
Balance as of March 31, 2023 | |
| 3,058,887 | | |
| 7 | | |
| 236,998 | | |
| (229,242 | ) | |
| 7,763 | |
Stock-based compensation | |
| — | | |
| — | | |
| 481 | | |
| — | | |
| 481 | |
Release of vested restricted common stock | |
| 71 | | |
| — | | |
| — | | |
| — | | |
| — | |
Restricted stock awards cancelled | |
| (96 | ) | |
| — | | |
| — | | |
| — | | |
| — | |
Issuance of common stock and warrants, net of offering costs | |
| 755,922 | | |
| — | | |
| 1,048 | | |
| — | | |
| 1,048 | |
Issuance of common stock in connection with warrant exercise | |
| 1,486,132 | | |
| — | | |
| 1,895 | | |
| — | | |
| 1,895 | |
Net loss | |
| — | | |
| — | | |
| — | | |
| (5,326 | ) | |
| (5,326 | ) |
Balance as of June 30, 2023 | |
| 5,300,916 | | |
| 7 | | |
| 240,422 | | |
| (234,568 | ) | |
| 5,861 | |
Stock-based compensation | |
| 769,041 | | |
| — | | |
| 518 | | |
| — | | |
| 518 | |
Issuance of common stock in connection with warrant exercise | |
| 510,000 | | |
| — | | |
| 617 | | |
| — | | |
| 617 | |
Net loss | |
| — | | |
| — | | |
| — | | |
| (6,111 | ) | |
| (6,111 | ) |
Balance as of September 30, 2023 | |
| 6,579,957 | | |
$ | 7 | | |
$ | 241,557 | | |
$ | (240,679 | ) | |
$ | 885 | |
| |
Common
Shares | | |
Additional | | |
Accumulated | | |
Stockholders’ | |
| |
Shares | | |
Amount | | |
Paid-in Capital | | |
Deficit | | |
Equity
(Deficit) | |
Balance as of December 31, 2021 | |
| 158,191 | | |
$ | 2 | | |
$ | 228,578 | | |
$ | (212,203 | ) | |
$ | 16,377 | |
ASC842 adoption adjustment | |
| — | | |
| — | | |
| — | | |
| 33 | | |
| 33 | |
Stock-based compensation | |
| 10,674 | | |
| — | | |
| 480 | | |
| — | | |
| 480 | |
Release of vested restricted common stock | |
| 57 | | |
| — | | |
| — | | |
| — | | |
| — | |
Restricted stock awards cancelled | |
| (87 | ) | |
| — | | |
| — | | |
| — | | |
| — | |
Net loss | |
| — | | |
| — | | |
| — | | |
| (3,904 | ) | |
| (3,904 | ) |
Balance as of March 31, 2022 | |
| 168,835 | | |
| 2 | | |
| 229,058 | | |
| (216,074 | ) | |
| 12,986 | |
Stock-based compensation | |
| 300 | | |
| — | | |
| 506 | | |
| — | | |
| 506 | |
Release of vested restricted common stock | |
| 12 | | |
| — | | |
| — | | |
| — | | |
| — | |
Restricted stock awards cancelled | |
| (148 | ) | |
| — | | |
| — | | |
| — | | |
| — | |
Net loss | |
| — | | |
| — | | |
| — | | |
| (4,108 | ) | |
| (4,108 | ) |
Balance as of June 30, 2022 | |
| 168,999 | | |
| 2 | | |
| 229,564 | | |
| (220,182 | ) | |
| 9,384 | |
Stock-based compensation | |
| 1,775 | | |
| — | | |
| 526 | | |
| — | | |
| 526 | |
Release of vested restricted common stock | |
| 599 | | |
| — | | |
| — | | |
| — | | |
| — | |
Restricted stock awards cancelled | |
| (179 | ) | |
| — | | |
| — | | |
| — | | |
| — | |
Issuance of warrants in connection with convertible promissory
note | |
| — | | |
| — | | |
| 91 | | |
| — | | |
| 91 | |
Net loss | |
| — | | |
| — | | |
| — | | |
| (4,649 | ) | |
| (4,649 | ) |
Balance as of September 30, 2022 | |
| 171,194 | | |
$ | 2 | | |
$ | 230,181 | | |
$ | (224,831 | ) | |
$ | 5,352 | |
Note: Share amounts have been retroactively adjusted
to reflect the impact of a 1-for-100 reverse stock split effected in January 2023, as discussed in Note 1.
The accompanying notes are an integral
part of these condensed consolidated financial statements.
WISA TECHNOLOGIES, INC.
CONDENSED
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the nine months ended September
30, 2023 and 2022
(in thousands)
(unaudited)
| |
Nine Months
Ended September 30, | |
| |
2023 | | |
2022 | |
Cash flows from operating activities: | |
| | | |
| | |
Net loss | |
$ | (12,358 | ) | |
$ | (12,661 | ) |
Adjustments to reconcile net loss to net cash used in operating
activities: | |
| | | |
| | |
Stock-based compensation | |
| 1,498 | | |
| 1,512 | |
Depreciation and amortization | |
| 82 | | |
| 91 | |
Amortization of debt discounts | |
| 779 | | |
| 156 | |
Change in fair value of warrant liabilities | |
| (6,134 | ) | |
| (274 | ) |
Loss on extinguishment of convertible
note payable | |
| 837 | | |
| — | |
Changes in operating assets and liabilities: | |
| | | |
| | |
Accounts receivable | |
| (160 | ) | |
| (23 | ) |
Inventories | |
| 3,901 | | |
| (2,504 | ) |
Prepaid expenses and other assets | |
| (149 | ) | |
| 53 | |
Other assets | |
| 67 | | |
| 79 | |
Accounts payable | |
| (84 | ) | |
| 1,074 | |
Accrued liabilities | |
| (319 | ) | |
| (288 | ) |
Other liabilities | |
| (61 | ) | |
| (111 | ) |
Net cash used in operating activities | |
| (12,101 | ) | |
| (12,896 | ) |
| |
| | | |
| | |
Cash flows from investing activities: | |
| | | |
| | |
Purchases of property and equipment | |
| (50 | ) | |
| (36 | ) |
Net cash used in investing activities | |
| (50 | ) | |
| (36 | ) |
| |
| | | |
| | |
Cash flows from financing activities: | |
| | | |
| | |
Repayment of convertible note payable,
net of issuance costs | |
| (1,657 | ) | |
| 2,483 | |
Repayment of finance lease | |
| (15 | ) | |
| (15 | ) |
Proceeds from issuance of common stock
and prefunded warrants, net of issuance costs | |
| 7,995 | | |
| — | |
Proceeds from exercise of warrants | |
| 2,545 | | |
| — | |
Proceeds from issuance of short-term
loan, net of issuance costs | |
| 598 | | |
| — | |
Net cash provided by financing activities | |
| 9,466 | | |
| 2,468 | |
| |
| | | |
| | |
Net decrease in cash and cash equivalents | |
| (2,685 | ) | |
| (10,464 | ) |
Cash and cash equivalents as of beginning of period | |
| 2,897 | | |
| 13,108 | |
Cash and cash equivalents as of end of period | |
$ | 212 | | |
$ | 2,644 | |
| |
| | | |
| | |
Supplemental disclosure of cash flow information: | |
| | | |
| | |
Cash paid for interest | |
$ | 24 | | |
$ | 17 | |
Cash paid for income taxes | |
$ | 2 | | |
$ | 2 | |
| |
| | | |
| | |
Noncash Investing and Financing Activities: | |
| | | |
| | |
Cashless exercise of warrants | |
$ | 8,191 | | |
$ | — | |
Issuance of warrants in connection
with February 2023 offering | |
$ | 5,601 | | |
$ | — | |
Issuance of common stock in connection
with convertible promissory note | |
$ | 708 | | |
$ | — | |
Record Right-of-Use Assets obtained
in exchange for modified operating lease liabilities | |
$ | 554 | | |
$ | — | |
Deferred offering costs reclassed from
prepaid expenses | |
$ | 97 | | |
$ | — | |
Accrual of legal fees for the short-term
loan | |
$ | 10 | | |
$ | — | |
Issuance of warrants in connection
with convertible notes payable | |
$ | — | | |
$ | 1,076 | |
Derivative liability recorded in connection
with issuance of convertible notes payable | |
$ | — | | |
$ | 286 | |
The accompanying notes are an integral
part of these condensed consolidated financial statements.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 1. | Business
and Summary of Significant Accounting Policies |
WiSA Technologies, Inc., formerly
known as Summit Wireless Technologies, Inc. (together with its subsidiaries also referred to herein as “we”, “us”,
“our”, or the “Company”), was originally formed as a limited liability company in Delaware on July 23, 2010.
Our business is to deliver the best-in-class immersive wireless sound technology for intelligent devices and next generation home entertainment
systems through the sale of module components to audio companies as well as audio products to resellers and consumers.
NASDAQ Notification
On June 23, 2022, the Company received
a written notification (the “Notice”) from the Listing Qualifications Department of the Nasdaq Stock Market LLC (“Nasdaq”)
notifying the Company that it was not in compliance with the minimum bid price requirement for continued listing on the Nasdaq Capital
Market, as set forth under Nasdaq Listing Rule 5550(a)(2) (the “Minimum Bid Price Requirement”), because the closing bid
price of the Company’s common stock was below $1.00 per share for the previous thirty (30) consecutive business days. Pursuant
to Nasdaq Listing Rule 5810(c)(3)(A), the Company was granted 180 calendar days from the date of the Notice, or until December 20, 2022,
to regain compliance with the Minimum Bid Price Requirement. On December 21, 2022, Nasdaq granted the Company an additional 180-day period,
or until June 20, 2023, to regain compliance with the Minimum Bid Price Requirement.
On January 18, 2023, the Company received
notice (the “January 18 Letter”) that Nasdaq had determined that as of January 18, 2023, the Company’s securities had
a closing bid price of $0.10 or less for ten consecutive trading days triggering application of Listing Rule 5810(c)(3)(A)(iii)
which states in part: if during any compliance period specified in Rule 5810(c)(3)(A), a company’s security has a closing bid price
of $0.10 or less for ten consecutive trading days, the Listing Qualifications Department shall issue a Staff Delisting
Determination under Rule 5810 with respect to that security (the “Low Priced Stocks Rule”). As a result, the Staff determined
to delist the Company’s securities from Nasdaq, unless the Company timely requests an appeal of the Staff’s determination
to a Hearings Panel (the “Panel”), pursuant to the procedures set forth in the Nasdaq Listing Rule 5800 Series.
On February 13, 2023, the Company
received notice (the “February 13 Letter”) from Nasdaq that it had determined that the Company had cured its bid price deficiency
and now complies with the Minimum Bid Price Requirement, as the closing bid price of the Company’s common stock was at least $1.00 per
share for at least a minimum of 10 consecutive business days.
On March 20, 2023, the Staff orally
notified us that we were not in compliance with Nasdaq Listing Rule 5550(b)(1), which requires companies listed on Nasdaq to maintain
a minimum of $2,500,000 in stockholders’ equity for continued listing (the “Stockholders’ Equity Requirement”).
We reported stockholders’ equity (deficit) of ($1,996,000) in our Annual Report on Form 10-K for the fiscal year ended December
31, 2022, and, as a result, did not satisfy the Stockholders’ Equity Requirement of $2,500,000 pursuant to Listing Rule 5550(b)(1).
As of March 31, 2023, we had stockholders’ equity of $7,763,000 and, accordingly, we believe that we had regained compliance
with the Stockholders’ Equity Requirement.
On October 5, 2023, we received a
written notification from Nasdaq notifying the Company that it was not in compliance with the Minimum Bid Price Requirement, because
the closing bid price of the Company’s common stock was below $1.00 per share for the previous thirty (30) consecutive business
days. The notification has no immediate effect on the listing of the Common Stock, which will continue to trade uninterrupted on the
Nasdaq Capital Market under the ticker “WISA.” Pursuant to Nasdaq Listing Rule 5810(c)(3)(A), the Company has been granted
180 calendar days from the date of the Notice, or until April 2, 2024 (the “Compliance Period”), to regain compliance with
the Minimum Bid Price Requirement. If at any time during the Compliance Period, the bid price of the Common Stock closes at or above
$1.00 per share for a minimum of ten (10) consecutive business days, Nasdaq will provide the Company with written confirmation of
compliance with the Minimum Bid Price Requirement and the matter will be closed.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 1. | Business
and Summary of Significant Accounting Policies, continued |
Reverse Stock Split
On January 24, 2023, the Company held
a special meeting of its stockholders, at which its stockholders approved an amendment to the Company’s certificate of incorporation,
as amended, to effect a reverse stock split of all of the outstanding shares of common stock at a specific ratio within a range from
one-for-five to one-for-one hundred, and to grant authorization to the board of directors to determine, in its sole discretion, the specific
ratio and timing of the reverse stock split. On January 24, 2023, the board approved a 1-for-100 reverse stock split (the “Reverse
Stock Split”) of our outstanding shares of common stock and authorized the filing of a certificate of amendment to our certificate
of incorporation, as amended, with the Secretary of State of the State of Delaware (the “Certificate of Amendment”) to affect
the Reverse Stock Split. On January 26, 2023, the Reverse Stock Split was effected and the condensed consolidated financial statements
have been retroactively adjusted. All common stock share numbers, warrants to purchase common stock, prices and exercise prices have
been retroactively adjusted to reflect the Reverse Stock Split. The common stock began trading on a split-adjusted basis at the start
of trading on January 27, 2023. Unless otherwise indicated, the information presented in this Quarterly Report on Form 10-Q for the three
and nine months ended September 30, 2023 (the “Report”) gives effect to the Reverse Stock Split.
Basis of Presentation
The accompanying unaudited condensed
consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States
of America (“U.S. GAAP”) for interim financial information and pursuant to Article 10 of Regulation S-X of the Securities
Act of 1933, as amended (the “Securities Act”). Accordingly, they do not include all of the information and notes required
by U.S. GAAP for complete financial statements. These unaudited condensed consolidated financial statements include all normal and recurring
adjustments that the Company believes are necessary to fairly state the Company’s financial position and the results of operations
and cash flows. Interim period results are not necessarily indicative of results of operations or cash flows for a full year or any subsequent
interim period. The condensed consolidated balance sheet as of December 31, 2022 has been derived from audited consolidated financial
statements at that date, but does not include all disclosures required by U.S. GAAP for complete financial statements.
Use of Estimates
The preparation of financial statements
in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from those estimates.
Reclassification
Certain reclassifications have been
made to prior periods’ condensed consolidated financial statements to conform to the current period presentation. These reclassifications
did not result in any change in previously reported net loss, total assets or stockholders’ equity.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 1. | Business
and Summary of Significant Accounting Policies, continued |
Concentration of Credit Risk and
Other Risks and Uncertainties
Financial instruments that potentially
subject the Company to significant concentrations of credit risk consist primarily of cash and cash equivalents and accounts receivable.
Cash and cash equivalents are deposited in demand and money market accounts at one financial institution. At times, such deposits may
be in excess of insured limits. The Company has not experienced any losses on its deposits of cash and cash equivalents.
The Company’s accounts receivable
are derived from revenue earned from customers located throughout the world. The Company performs credit evaluations of its customers’
financial condition as necessary, and sometimes requires partial payment in advance of shipping. As of September 30, 2023 and December
31, 2022, there was no allowance for doubtful accounts. As of September 30, 2023, the Company had two customers accounting
for 78% and 11% of accounts receivable. As of December 31, 2022, the Company had two customers accounting for 62%
and 12% of accounts receivable.
The Company had three customers
accounting for 40%, 28% and 21% of its net revenue for the three months ended September 30, 2023. The Company had four customers
accounting for 22%, 17%, 16% and 15% of its net revenue for the nine months ended September 30, 2023. The Company
had three customers accounting for 42%, 16%, and 12% of its net revenue for the three months ended September
30, 2022. The Company had three customers accounting for 20%, 18%, and 16% of its net revenue for the nine months
ended September 30, 2022.
The Company’s future results
of operations involve a number of risks and uncertainties. Factors that could affect the Company’s future operating results and
cause actual results to vary materially from expectations include, but are not limited to, rapid technological change, continued acceptance
of the Company’s products, competition from substitute products and larger companies, protection of proprietary technology, strategic
relationships and dependence on key individuals.
The Company relies on sole-source
suppliers to manufacture some of the components used in its product. The Company’s manufacturers and suppliers may encounter problems
during manufacturing due to a variety of reasons, any of which could delay or impede their ability to meet demand. The Company is heavily
dependent on a single contractor in China for assembly and testing of its products, a single contractor in Japan for the production of
its transmit semiconductor chip and a single contractor in China for the production of its receive semiconductor chip.
Deferred Offering Costs
Deferred offering costs, consisting
of legal, accounting and filing fees relating to public offerings, are capitalized. The deferred offering costs will be offset against
public offering proceeds upon the effectiveness of an offering. In the event that an offering is terminated, deferred offering costs
will be expensed. As of September 30, 2023 and December 31, 2022, the Company had capitalized $210,000 and $206,000, respectively,
of deferred offering costs in prepaid expenses and other current assets on the condensed consolidated balance sheet.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 1. | Business
and Summary of Significant Accounting Policies, continued |
Convertible Financial Instruments
The Company bifurcates conversion
options and warrants from their host instruments and accounts for them as freestanding derivative financial instruments if certain criteria
are met. The criteria include circumstances in which (a) the economic characteristics and risks of the embedded derivative instrument
are not clearly and closely related to the economic characteristics and risks of the host contract, (b) the hybrid instrument that
embodies both the embedded derivative instrument and the host contract is not re-measured at fair value under otherwise applicable generally
accepted accounting principles with changes in fair value reported in earnings as they occur and (c) a separate instrument with
the same terms as the embedded derivative instrument would be considered a derivative instrument. An exception to this rule is when
the host instrument is deemed to be conventional, as that term is described under applicable U.S. GAAP.
When the Company has determined that
the embedded conversion options and warrants should be bifurcated from their host instruments, discounts are recorded for the intrinsic
value of conversion options embedded in the instruments based upon the differences between the fair value of the underlying common stock
at the commitment date of the transaction and the effective conversion price embedded in the instrument.
Debt discounts under these arrangements
are amortized to interest expense using the interest method over the earlier of the term of the related debt or their earliest date of
redemption.
Warrants for Shares of Common Stock
and Derivative Financial Instruments
Warrants for shares of common stock
and other derivative financial instruments are classified as equity if the contracts (1) require physical settlement or net-share settlement
or (2) give the Company a choice of net-cash settlement or settlement in its own shares (physical settlement or net-share settlement).
Contracts which (1) require net-cash settlement (including a requirement to net cash settle the contract if an event occurs and if that
event is outside the control of the Company), (2) give the counterparty a choice of net-cash settlement or settlement in shares (physical
settlement or net-share settlement), or (3) that contain reset provisions that do not qualify for the scope exception are classified
as liabilities. The Company assesses classification of its warrants for shares of common stock and other derivatives at each reporting
date to determine whether a change in classification between equity and liabilities is required.
In an equity-classified freestanding
financial instrument, as of the date that a down round feature is triggered, the Company measures the fair value of the instrument without
the down round feature (that is, before the strike price is reduced) and the fair value of the financial instrument with a strike price
that reflects the adjustment from the down round. The incremental difference in the fair value is recorded a deemed dividend. As the
Company has an accumulated deficit, the deemed dividend is recorded as a reduction of additional paid-in capital in the condensed consolidated
balance sheet. The Company increases the net loss available to common stockholders by the amount of the deemed dividend. For the three
and nine month periods ended September 30, 2023 and 2022, there were no deemed dividends.
Product Warranty
The Company’s products are generally
subject to a one-year warranty, which provides for the repair, rework, or replacement of products (at the Company’s option)
that fail to perform within the stated specification. The Company has assessed its historical claims and, to date, product warranty claims
have not been significant. The Company will continue to assess if there should be a warranty accrual going forward.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 1. | Business
and Summary of Significant Accounting Policies, continued |
Revenue Recognition
The Company generates revenue primarily
from two product categories which include the sale of Consumer Audio Products as well as the sale of Components. The Company applies
the following five steps: (1) identify the contract with a customer, (2) identify the performance obligations in the contract, (3) determine
the transaction price, (4) allocate the transaction price to the performance obligations in the contract, and (5) recognize revenue when
a performance obligation is satisfied. The Company considers customer purchase orders to be the contracts with a customer. Revenues,
net of expected discounts, are recognized when the performance obligations of the contract with the customer are satisfied and when control
of the promised goods are transferred to the customer, typically when products, which have been determined to be the only distinct performance
obligations, are shipped to the customer. Expected costs of assurance warranties and claims are recognized as expense.
Taxes assessed by a governmental authority
that are both imposed on and concurrent with a specific revenue-producing transaction, that are collected by us from a customer and deposited
with the relevant government authority, are excluded from revenue. Our revenue arrangements do not contain significant financing components.
Sales to certain distributors are
made under arrangements which provide the distributors with price adjustments, price protection, stock rotation and other allowances
under certain circumstances. The Company does not provide its customers with a contractual right of return. However, the Company accepts
limited returns on a case-by-case basis. These returns, adjustments and other allowances are accounted for as variable consideration.
We estimate these amounts based on the expected amount to be provided to customers and reduce revenue recognized. We believe that there
will not be significant changes to our estimates of variable consideration.
If a customer pays consideration,
or the Company has a right to an amount of consideration that is unconditional before we transfer a good or service to the customer,
those amounts are classified as contract liabilities which are included in other current liabilities when the payment is made or it is
due, whichever is earlier.
During the three and nine months ended
September 30, 2023 and 2022, net revenue consisted of the following:
| |
Three Months
Ended September 30, | | |
Nine Months
Ended September 30, | |
(in thousands) | |
2023 | | |
2022 | | |
2023 | | |
2022 | |
Components | |
$ | 258 | | |
$ | 696 | | |
$ | 899 | | |
$ | 1,769 | |
Consumer Audio Products | |
| 511 | | |
| 241 | | |
| 764 | | |
| 680 | |
Total | |
$ | 769 | | |
$ | 937 | | |
$ | 1,663 | | |
$ | 2,449 | |
Contract Balances
We receive payments from customers
based on a billing schedule as established in our contracts to partially offset prepayments required by our vendors on long lead time
materials. Amounts collected prior to the fulfillment of the performance obligation are considered contract liabilities and classified
as customer advances within accrued liabilities on the condensed consolidated balance sheets. Contract assets are recorded when we have
a conditional right to consideration for our completed performance under the contracts. Accounts receivables are recorded when the right
to this consideration becomes unconditional. We do not have any material contract assets as of September 30, 2023 and December 31, 2022.
| |
September 30, | | |
December 31, | |
| |
2023 | | |
2022 | |
Contract Liabilities | |
$ | 12 | | |
$ | 44 | |
During the nine months ended September
30, 2023, the Company recognized $44,000 of revenue that was included in the contract balances as of December 31, 2022.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 1. | Business
and Summary of Significant Accounting Policies, continued |
Revenue by Geographic Area
In general, revenue disaggregated
by geography (See Note 10) is aligned according to the nature and economic characteristics of our business and provides meaningful disaggregation
of our results of operations. Since we operate in one segment, all financial segment and product line information can be found
in the condensed consolidated financial statements.
Practical Expedients and Exemptions
As part of our adoption of Accounting
Standards Codification Topic 606, Revenue from Contracts with Customers, we use the following practical expedients: (i) not to adjust
the promised amount of consideration for the effects of a significant financing component when we expect, at contract inception, that
the period between our transfer of a promised product or service to a customer and when the customer pays for that product or service
will be one year or less; (ii) to expense costs as incurred for costs to obtain a contract when the amortization period would have been
one year or less; (iii) not to assess whether promised goods or services are performance obligations if they are immaterial in the context
of the contract with the customer. In addition, we do not disclose the value of unsatisfied performance obligations for contracts
with an original expected length of one year or less.
Stock-Based Compensation
The Company measures and recognizes
the compensation expense for restricted stock units and restricted stock awards granted to employees and directors based on the fair
value of the award on the grant date.
Restricted stock units give an employee
an interest in Company stock but they have no tangible value until vesting is complete. Restricted stock units and restricted stock awards
are equity classified and measured at the fair market value of the underlying stock at the grant date and recognized as expense over
the related service or performance period. The Company elected to account for forfeitures as they occur. The fair value of stock awards
is based on the quoted price of our common stock on the grant date. Compensation cost for restricted stock units and restricted stock
awards is recognized using the straight-line method over the requisite service period.
Advertising Costs
Advertising costs are charged to sales
and marketing expenses as incurred. Advertising costs for the three and nine months ended September 30, 2023 were $238,000 and $511,000,
respectively. Advertising costs for the three and nine months ended September 30, 2022 were $300,000 and $704,000, respectively.
Comprehensive Loss
Comprehensive loss represents the
changes in equity of an enterprise, other than those resulting from stockholder transactions. Accordingly, comprehensive loss may include
certain changes in equity that are excluded from net loss. For the three and nine months ended September 30, 2023 and 2022, the Company’s
comprehensive loss is the same as its net loss.
Foreign Currency
The financial position and results
of operations of the Company’s foreign operations are measured using currencies other than the U.S. dollar as their functional
currencies. Accordingly, for these operations all assets and liabilities are translated into U.S. dollars at the current exchange rates
as of the respective balance sheet date. Expense items are translated using the weighted average exchange rates prevailing during the
period. Cumulative gains and losses from the translation of these operations’ financial statements are reported as a separate component
of stockholders’ equity, while foreign currency transaction gains or losses, resulting from re-measuring local currency to the
U.S. dollar are recorded in the condensed consolidated statement of operations in other income (expense), net and were not material for
the three and nine months ended September 30, 2023 and 2022.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 1. | Business
and Summary of Significant Accounting Policies, continued |
Net Loss per Common Share
Basic net loss per common share is
calculated by dividing the net loss attributable to common stockholders by the weighted average number of shares of common stock outstanding
during the period, without consideration for potentially dilutive securities. Diluted net loss per common share is computed by dividing
the net loss attributable to common stockholders by the weighted average number of shares of common stock and potentially dilutive common
share equivalents outstanding for the period determined using the treasury-stock and if-converted methods. For purposes of the diluted
net loss per common share calculation, warrants exercisable for common stock, restricted stock units and shares issuable upon the conversion
of convertible notes payable are considered to be potentially dilutive securities.
As of September 30, 2023, warrants
to purchase 5,635,290 shares of common stock, 10,386 shares of restricted stock, 2,667 shares of restricted
stock issued under an inducement grant and 5,466 shares underlying restricted stock units have been excluded from the calculation
of net loss per common share because the inclusion would be antidilutive.
As of September 30, 2022, warrants
to purchase 67,028 shares of common stock, 16,775 shares of restricted stock and 2,906 shares of restricted
stock issued under an inducement grant and 7,316 shares underlying restricted stock units have been excluded from the calculation
of net loss per common share because the inclusion would be antidilutive.
Recently Adopted Accounting Pronouncements.
In June 2016, Financial Accounting
Standards Board’s (“FASB”) issued Accounting Standards Update (“ASU”) 2016-13, Financial Instruments-Credit
Losses (Topic 326): Measurement of Credit Losses on Financial Instruments, as amended, which requires the early recognition of credit
losses on financing receivables and other financial assets in scope. ASU 2016-13 requires the use of a transition model that will result
in the earlier recognition of allowances for losses. The new standard is effective for fiscal years beginning after December 15, 2022.
The Company adopted this standard on January 1, 2023, and the adoption did not have any impact on the condensed consolidated financial
statements.
Recently Issued and Not Yet Adopted
Accounting Pronouncements
In August 2020, the FASB issued ASU
2020-06 “Debt – Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging – Contracts in
Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity”.
This ASU simplifies accounting for convertible instruments by removing major separation models required under current U.S. GAAP. Consequently,
more convertible debt instruments will be reported as a single liability instrument and more convertible preferred stock as a single
equity instrument with no separate accounting for embedded conversion features. The ASU removes certain settlement conditions that are
required for equity contracts to qualify for the derivative scope exception, which will permit more equity contracts to qualify for the
exception. The ASU also simplifies the diluted earnings per share (EPS) calculation in certain areas. As an emerging growth company,
the Company is allowed to adopt the accounting pronouncement at the same time as non-public business entities. As a result, the Company
will adopt the update for its fiscal year beginning after December 15, 2023. The Company is evaluating the impact of this standard on
its condensed consolidated financial statements.
We have reviewed other recent accounting
pronouncements and concluded they are either not applicable to the business, or no material effect is expected on the condensed consolidated
financial statements as a result of future adoption.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
The condensed consolidated financial
statements of the Company have been prepared on a going concern basis, which contemplates the realization of assets and the discharge
of liabilities in the normal course of business. The Company has incurred net operating losses each year since inception. As of September
30, 2023, the Company had cash and cash equivalents of $0.2 million and reported net cash used in operations of $12.1 million
during the nine months ended September 30, 2023. The Company expects operating losses to continue in the foreseeable future because of
additional costs and expenses related to research and development activities, plans to expand its product portfolio, and increase its
market share. The Company’s ability to attain profitable operations is dependent upon achieving a level of revenues adequate to
support its cost structure.
Based on current operating levels,
the Company will need to raise additional funds by selling additional equity or incurring debt. To date, the Company has funded its operations
primarily through issuance of equity securities and proceeds from the exercise of warrants to purchase common stock and the sale of debt
instruments. Additionally, future capital requirements will depend on many factors, including the rate of revenue growth, the selling
price of the Company’s products, the expansion of sales and marketing activities, the timing and extent of spending on research
and development efforts and the continuing market acceptance of the Company’s products. These factors raise substantial doubt about
the Company’s ability to continue as a going concern for the twelve months from the date of this Report.
Management of the Company intends
to raise additional funds through the issuance of equity securities or debt. There can be no assurance that, in the event the Company
requires additional financing, such financing will be available at terms acceptable to the Company, if at all. Failure to generate sufficient
cash flows from operations, raise additional capital and reduce discretionary spending could have a material adverse effect on the Company’s
ability to achieve its intended business objectives. As a result, the substantial doubt about the Company’s ability to continue
as a going concern has not been alleviated. The accompanying condensed consolidated financial statements do not include any adjustments
that might be necessary if the Company is unable to continue as a going concern.
| 3. | Balance
Sheet Components |
Inventories (in thousands):
| |
September 30, | | |
December 31, | |
| |
2023 | | |
2022 | |
Raw materials | |
$ | 656 | | |
$ | 3,043 | |
Work in progress | |
| — | | |
| 13 | |
Finished goods | |
| 2,513 | | |
| 4,014 | |
Total inventories | |
$ | 3,169 | | |
$ | 7,070 | |
Property and equipment, net (in
thousands):
| |
September 30, | | |
December 31, | |
| |
2023 | | |
2022 | |
Machinery and equipment | |
$ | 741 | | |
$ | 691 | |
Leasehold improvements | |
| — | | |
| 127 | |
Tooling | |
| 11 | | |
| 11 | |
| |
| 752 | | |
| 829 | |
Less: Accumulated depreciation and amortization | |
| (643 | ) | |
| (655 | ) |
Property and equipment,
net | |
$ | 109 | | |
$ | 174 | |
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 3. | Balance
Sheet Components, continued |
Depreciation and amortization expense
for the three months ended September 30, 2023 and 2022 was $18,000 and $31,000, respectively. Depreciation and amortization expense
for the nine months ended September 30, 2023 and 2022 was $82,000 and $91,000, respectively.
The cost and accumulated depreciation
of assets acquired under finance lease included in machinery and equipment in the above table as of September 30, 2023 were $72,000 and
$72,000 respectively.
Accrued liabilities (in thousands):
| |
September 30, | | |
December 31, | |
| |
2023 | | |
2022 | |
Accrued vacation | |
$ | 427 | | |
$ | 422 | |
Accrued audit fees | |
| 168 | | |
| 179 | |
Accrued rebate | |
| 107 | | |
| 215 | |
Accrued legal fees | |
| 96 | | |
| 43 | |
Customer advance | |
| 12 | | |
| 44 | |
Accrued other | |
| 395 | | |
| 424 | |
Accrued compensation | |
| — | | |
| 136 | |
Accrued lease liability, current portion | |
| — | | |
| 169 | |
Total accrued liabilities | |
$ | 1,205 | | |
$ | 1,632 | |
Convertible Promissory Note
On August 15, 2022, the Company entered
into a Securities Purchase Agreement (the “August Purchase Agreement”), by and between the Company and an institutional investor
(the “Convertible Note Investor”), pursuant to which the Company agreed to issue to the Investor a senior secured convertible
note in the principal amount of $3,600,000 (the “Convertible Note”) and a warrant (the “August Warrant”)
to purchase up to 20,970 shares of the Company’s common stock, at an exercise price of $99.70 per share (the “Exercise
Price”), in consideration for $3,000,000. Pursuant to the August Purchase Agreement, upon the closing of the private placement,
pursuant to which Maxim Group LLC (“Maxim”) acted as placement agent (the “Private Placement”), the Company received
gross proceeds of $3,000,000. After the deduction of banker fees, commitment fees and other expenses associated with the transaction,
the Company received net proceeds of $2,483,000. The Company used the net proceeds primarily for working capital and general corporate
purposes.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
The Convertible Note matures on August
15, 2024, does not bear interest and ranks senior to the Company’s existing and future indebtedness and is secured to the extent
and as provided in the Security Agreements. The Convertible Note is convertible in whole or in part at the option of the Convertible
Note Investor into shares of Common stock (the “Conversion Shares”) at the Conversion Price (as defined below) at any time
following the date of issuance of the Convertible Note. The Convertible Note defines “Conversion Price” as equal to the lesser
of (a) 90% of the average of the five lowest daily VWAPs (as defined in the Convertible Note) during the previous twenty trading
days prior to delivery to the Company of the Convertible Note Investor’s applicable notice of conversion (the “Conversion
Notice”) and (b) $92.60 (the “Base Conversion Price”). The Base Conversion Price is subject to full ratchet antidilution
protection, subject to a floor conversion price of $0.50 per share (the “Floor Price”), a limitation required by the
rules and regulations of Nasdaq, and certain exceptions upon any subsequent transaction at a price lower than the Base Conversion Price
then in effect and standard adjustments in the event of stock dividends, stock splits, combinations or similar events; provided that
in the event the Conversion Price equals the Floor Price, the Company is required to pay the Convertible Note Investor a cash amount
determined pursuant to a formula in the Convertible Note, and provided further that the Floor Price will not apply in the event that
the Company obtains Stockholder Approval (as defined in the August Purchase Agreement) in accordance with Nasdaq rules. At any time after
the closing date of the Private Placement, in the event that the Company issues or sells any shares of common stock or common stock Equivalents
(as defined in the Convertible Note), subject to certain exceptions, at an effective price per share lower than the Base Conversion Price
then in effect or without consideration, then the Base Conversion Price shall be reduced to the price per share paid for such shares
of common stock or common stock Equivalents. Additionally, upon three days’ written notice to the holder after receipt of
a Conversion Notice, in lieu of delivering Conversion Shares, the Company has the right to pay the Convertible Note Investor in cash
an amount equal to 105% of the portion of the outstanding principal amount stated in such Conversion Notice. Further, at the Convertible
Note Investor’s option, the Convertible Note is convertible into shares of common stock or redeemable for 103% of the portion
of the outstanding principal amount to be converted in the event that any transaction causes the Conversion Price to be lower
than the Floor Price. Subject to certain exceptions, commencing on the Conversion Trigger Date and for a nine-month period
after such date, the Convertible Note Investor may convert only up to an aggregate of $250,000 in outstanding principal amount during
any calendar month, provided, that if Stockholder Approval has been obtained, the Convertible Note is in default at the time or the Company
meets certain capitalization conditions, such conversion limitation would not apply.
The obligations and performance of
the Company under the Convertible Note and the August Purchase Agreement are secured by a senior lien granted pursuant to security agreements
between the Convertible Note Investor and the Company, on (a) all of the assets of the Company; (b) a senior lien granted pursuant to
trademark security agreements between the Convertible Note Investor and the Company; (c) a senior lien granted pursuant to a patent security
agreement between the Convertible Note Investor and the Company on all of the patent assets of the Company; and (d) a pledge of certain
securities pursuant to a pledge agreement between the Convertible Note Investor, the Company (such agreements listed in (a)-(d) above,
collectively, the “Security Agreements”). The payment and performance obligations of the Company under the Convertible Note
and the August Purchase Agreement are guaranteed pursuant to a guaranty by the Company in favor of the Convertible Note Investor.
In connection with the Private Placement,
the Company issued warrants to the Convertible Note Investor and Maxim to purchase common shares of 20,970 and 1,944,
respectively (see Note 5 – Fair Value Measurements). The sum of the fair value of the warrants, the original issue discount for
interest, issuance costs and the derivative liability for the embedded conversion feature for the Convertible Note were recorded as debt
discounts totaling $2,509,000 to be amortized to interest expense over the respective term using the effective interest method.
During the three and nine months ended September 30, 2023, the Company recognized $0 and $738,000, respectively, of interest expense
from the amortization of debt discounts related to the Convertible Note.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
In connection with the Private Placement,
the Company entered into a placement agency agreement with Maxim (the “Placement Agency Agreement”), and agreed to issue
to Maxim, a warrant to purchase up to an aggregate of 1,944 shares of Common Stock (the “Maxim Warrant”) at an
exercise price of $99.70 per share, which is exercisable at any time on or after the six-month anniversary of the closing
date of the Private Placement and will expire on the fifth (5th) anniversary of its date of issuance.
Effective August 24, 2022, the Company
and the Convertible Note Investor agreed to amend Section 3.1(b) of the Convertible Note to provide that the Conversion Price could not
be lower than the Floor Price until stockholder approval has been obtained, after which stockholder approval the Floor Price may be reduced
to no lower than $0.25, subject to adjustment pursuant to the terms of the Convertible Note. The changes were effected by cancellation
of the Convertible Note and the issuance of a replacement senior secured convertible note (the “New Convertible Note”) to
the Convertible Note Investor. The New Convertible Note contains identical terms as the Convertible Note, except for the amendment to
the Section 3.1(b).
On November 21, 2022, the Company
and Maxim entered into an agreement to amend the Maxim Warrant (the “Maxim Warrant Amendment”). Specifically, the Maxim Warrant
Amendment sets forth certain circumstances in which the lock up restrictions to which the Maxim Warrant is subject would not apply. The
Maxim Warrant Amendment also clarifies certain limitations with respect to demand registration rights, and provides that Maxim’s
piggy-back registration rights expire on the fifth (5th) anniversary of the Maxim Warrant’s date of issuance.
Convertible promissory note (in thousands):
| |
September 30, | | |
December 31, | |
| |
2023 | | |
2022 | |
Convertible note payable | |
$ | — | | |
$ | 2,089 | |
Debt discount | |
| — | | |
| (1,632 | ) |
Net total | |
$ | — | | |
$ | 457 | |
The New Convertible Note contains
several embedded conversion features. The Company concluded that those conversion features require bifurcation from the New Convertible
Note and subsequent accounting in the same manner as a freestanding derivative. The Company recognized a derivative liability of $286,000 upon
execution of the note agreement and such amount was included in the $2,509,000 of debt discounts noted above. Subsequent changes
in the fair value of these conversion features are measured at each reporting period and recognized in the consolidated statement of
operations. The Company recorded no balance of the derivative liability as of September 30, 2023 after the convertible note
payoff in April 2023.
On November 28, 2022, the Company
entered into a waiver of rights (the “Waiver”) with the Convertible Note Investor, pursuant to which the Convertible Note
Investor agreed to waive certain prohibitions under the August Purchase Agreement with respect to the offering of units in December 2022
in exchange for the issuance by the Company, on the closing date of such offering, of an additional number of Series A warrants to purchase
shares of Common Stock (the “Series A Warrants”) and an additional number of Series B warrants to purchase shares of Common
Stock (the “Series B Warrants”) equal to the quotient obtained by dividing $750,000 by the public offering price for
the units sold in the offering (such Warrants, the “Waiver Warrants”).
In connection with the public offering
the Company consummated on December 1, 2022 (the “December 2022 Offering”), the Company issued 53,572 Series A
Warrants and 53,572 Series B Warrants to the Convertible Note Investor (See Note 6). The Company’s obligation to issue
shares of common stock underlying the Waiver Warrants is expressly conditioned upon stockholder approval of all of the transactions contemplated
by the August Purchase Agreement. At a Special Meeting of Stockholders held on January 24, 2023, the Company received stockholder approval
of the transactions contemplated by the August Purchase Agreement.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
On February 1, 2023, the holder of
the Convertible Note converted approximately $708,000, a portion of the outstanding principal amount into 67,500 shares of
the Company’s common stock.
On April 11, 2023, the Company paid
$1,656,744 to the holder of the Convertible Note which repaid the entirety of the outstanding balance and included the unpaid principal,
interest through the payoff date, and a pre-payment premium of $276,000 which was recorded as a component of loss on debt extinguishment.
Short-Term Loan
On September 8, 2023, the Company
entered into a Loan and Security Agreement with Meriwether Group Capital Hero Fund LP (“Meriwether”). Pursuant to the Loan
and Security Agreement, Meriwether provided the Company with a term loan in the principal amount of $650,000 that is scheduled to
mature on November 7, 2023, subject to further extension (“Meriwether Loan”). In addition, the Company has the right to request
additional funding under the Meriwether Loan.
Borrowings under the Meriwether Loan
will bear interest at a rate per annum equal to 18%. On the maturity date, subject to any extension, the Company is obligated to
make a payment equal to all unpaid principal and accrued interest. Pursuant to the Meriwether Loan, the Company shall pay to Meriwether
a fully earned, non-refundable, origination fee in the amount of $50,000. The Company shall also pay to Meriwether a fully earned, non-refundable,
exit fee in the amount of $50,000 due and payable on the maturity date. The origination fee, the exit fee and the issuance costs
associated with the Meriwether Loan were recorded as debt discounts totaling $113,000 to be amortized to interest expense over the
respective term using the effective interest method. During the three and nine months ended September 30, 2023, the Company recognized
$41,000, of interest expense from the amortization of debt discounts related to the Meriwether Loan.
The Meriwether Loan also provides
that all present and future indebtedness and the obligations of the Company to Meriwether shall be secured by a first priority security
interest in all real and personal property collateral of the Company.
The Meriwether Loan contains customary
representations, warranties and affirmative and negative covenants. In addition, the Meriwether Loan contains customary events of default
that entitle Meriwether to cause the Company’s indebtedness under the Loan and Security Agreement to become immediately due and
payable, and to exercise remedies against the Company and the collateral securing the term loan. Under the Meriwether Loan, an event
of default will occur if, among other things, the Company fails to make payments under the Meriwether Loan, the Company breaches any
of the covenants under the Meriwether Loan, a material adverse change occurs, the Company, or its assets, become subject to certain legal
proceedings, such as bankruptcy proceedings. Upon the occurrence and for the duration of an event of default, a default interest rate
equal to 24.0% per annum will apply to all obligations owed under the Meriwether Loan.
On October 10, 2023, Meriwether agreed
to extend the maturity date of the Meriwether Loan to December 7, 2023. See Note 11 - Subsequent Events.
Short-term loan (in thousands):
|
|
September 30, |
|
December 31, |
|
|
2023 |
|
2022 |
Short-term
loan |
|
$ |
700 |
|
$ |
— |
Debt
discount |
|
|
(71) |
|
|
— |
Net
total |
|
$ |
629 |
|
$ |
— |
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 5. | Fair
Value Measurements |
The Company measures the fair value
of financial instruments using a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value
into three broad levels. Each level of input has different levels of subjectivity and difficulty involved in determining fair value.
|
● |
Level
1 – Inputs used to measure fair value are unadjusted quoted prices that are available in active markets for the identical
assets or liabilities as of the reporting date. Therefore, determining fair value for Level 1 investments generally does not require
significant judgment, and the estimation is not difficult. |
|
● |
Level
2 – Pricing is provided by third-party sources of market information obtained through investment advisors. The Company
does not adjust for or apply any additional assumptions or estimates to the pricing information received from its advisors. |
|
● |
Level
3 – Inputs used to measure fair value are unobservable inputs that are supported by little or no market activity and reflect
the use of significant management judgment. These values are generally determined using pricing models for which the assumptions
utilize management’s estimates of market participant assumptions. The determination of fair value for Level 3 instruments
involves the most management judgment and subjectivity. |
The Company’s financial assets
and liabilities that are measured at fair value on a recurring basis as of September 30, 2023 and December 31, 2022 by level within the
fair value hierarchy, are as follows:
(in thousands) | |
September 30, 2023 | |
| |
| | |
Significant | | |
| |
| |
Quoted prices | | |
other | | |
Significant | |
| |
in active | | |
observable | | |
unobservable | |
| |
markets | | |
inputs | | |
inputs | |
| |
(Level 1) | | |
(Level 2) | | |
(Level 3) | |
Liabilities: | |
| | | |
| | | |
| | |
Warrant liabilities | |
$ | — | | |
$ | — | | |
$ | 221 | |
(in thousands) | |
December 31, 2022 | |
| |
| | |
Significant | | |
| |
| |
Quoted prices | | |
other | | |
Significant | |
| |
in active | | |
observable | | |
unobservable | |
| |
markets | | |
inputs | | |
inputs | |
| |
(Level 1) | | |
(Level 2) | | |
(Level 3) | |
Liabilities: | |
| | | |
| | | |
| | |
Derivative liability | |
$ | — | | |
$ | — | | |
$ | 333 | |
Warrant liabilities | |
$ | — | | |
$ | — | | |
$ | 8,945 | |
There were no transfers
between Level 1, 2 or 3 during the three and nine months ended September 30, 2023 or September 30, 2022.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 5. | Fair
Value Measurements, continued |
Derivative Liability
As described previously in Note 4,
the conversion provisions embedded in the New Convertible Note require bifurcation and measurement at fair value as a derivative. The
fair value was calculated using a Monte Carlo simulation to create a distribution of potential market capitalizations and share prices
for the Company on a weekly basis over the assumed period, given the various scenarios. The average value of the New Convertible Note
was discounted to the valuation date to determine a calibrated discount rate so that the fair value of the New Convertible Note was $3 million.
The value of the New Convertible Note was compared with the value of a hypothetical note with no conversion rights in order to determine
the fair value of the conversion feature. The derivative liability was written off upon the repayment of the New Convertible Note.
| |
September
30, | |
(in thousands) | |
2023 | | |
2022 | |
Beginning balance | |
$ | 333 | | |
$ | — | |
Additions | |
| — | | |
| 286 | |
Change in fair value | |
| — | | |
| — | |
Write off in connection with extinguishment of debt | |
| (333 | ) | |
| — | |
Ending balance | |
$ | — | | |
$ | 286 | |
Warrant Liabilities
The following table includes a summary
of changes in fair value of the Company’s warrant liabilities measured at fair value using significant unobservable inputs (Level
3) for the nine months ended September 30, 2023 and 2022. For September 30, 2023, the fair value of such warrants was determined using
the Black-Scholes Model based on the following key inputs and assumptions: common stock price of $0.59; exercise prices of $1.29 –
$10.49; expected yield of 0.0%; expected volatility of 115.7%; risk-free interest rate of 4.6% and expected life between 3.9 and 4.4 years.
| |
September
30, | |
(in thousands) | |
2023 | | |
2022 | |
Beginning balance | |
$ | 8,945 | | |
$ | 8 | |
Additions | |
| 5,601 | | |
| 985 | |
Change in fair value | |
| (6,134 | ) | |
| (274 | ) |
Cashless Exercise of warrant liabilities | |
| (8,191 | ) | |
| — | |
Ending balance | |
$ | 221 | | |
$ | 719 | |
The changes in fair value of the warrant
liabilities are recorded in change in fair value of warrant liabilities in the condensed consolidated statements of operations.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
Common Stock
2018 Long Term Stock Incentive Plan
On January 30, 2018, the Company’s
board of directors approved the establishment of the Company’s 2018 Long-Term Stock Incentive Plan (the “LTIP”) and
termination of its Carve-Out Plan. Under the LTIP, the aggregate maximum number of shares of common stock (including shares underlying
options) that may be issued under the LTIP pursuant to awards of Restricted Shares or Options will be limited to 15% of the outstanding
shares of common stock, which calculation shall be made on the first trading day of each new fiscal year; provided that, in any year
no more than 8% of the common stock or derivative securitization with common stock underlying 8% of the common stock may be
issued in any fiscal year. At a Special Meeting of Stockholders on January 24, 2023, the Stockholders approved certain amendments to
the LTIP to: (i) increase the annual share limit of Common Stock that may be issued in any single fiscal year only for the 2023 fiscal
year under the LTIP from 8% of the shares of Common Stock outstanding to 15% of the shares of Common Stock outstanding (which
amount equates to the maximum amount that may be issued in the aggregate under the LTIP), and (ii) permit immediately quarterly calculations
based on the number of shares of Common Stock outstanding as of the first trading day of each fiscal quarter, rather than solely as of
the first trading day of the fiscal year.
As of September 30, 2023, up to 207,567 shares
of common stock are available for participants under the LTIP. For the three and nine months ended September 30, 2023, 3,585 shares
of restricted stock issued under the LTIP were released with an intrinsic value of approximately $5,000. For the three and nine months
ended September 30, 2022, 613 and 2,843 shares of restricted stock, respectively, issued under the LTIP, were released
with an intrinsic value of approximately $37,000 and $294,000, respectively.
A summary of activity related to restricted
stock awards (excluding the deferred shares) for the nine months ended September 30, 2023 is presented below:
| |
| | |
Weighted-Average | |
Stock Awards | |
Shares | | |
Grant Date Fair Value | |
Non-vested as of January 1, 2023 | |
| 14,107 | | |
$ | 189.45 | |
Granted | |
| 769,041 | | |
$ | 1.20 | |
Vested | |
| (3,585 | ) | |
$ | 262.04 | |
Forfeited | |
| (136 | ) | |
$ | 206.13 | |
Non-vested as of September 30, 2023 | |
| 779,427 | | |
$ | 3.35 | |
As of September 30, 2023, the unamortized
compensation costs related to the unvested restricted stock awards was approximately $1,947,000 which is to be amortized on a straight-line
basis over a weighted-average period of approximately 2.0 years.
Inducement Grant
On September 13, 2021, the Company
issued 3,100 shares of restricted common stock to Eric Almgren, the Company’s Chief Strategist, as an inducement grant
(“September 2021 Inducement Grant”). As of September 30, 2023, the unamortized compensation cost related to the unvested
September 2021 Inducement Grant was approximately $249,000 which is being amortized on a straight-line basis over a period of approximately 1.0 years.
The Company recorded stock-based compensation of $191,000, related to this grant for the nine months ended September 30, 2023. As of
September 30, 2023, 2,667 shares are unvested. For the nine months ended September 30, 2023, 111 shares of restricted
stock were released under the September 2021 Inducement Grant with an intrinsic value of less than $1,000.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 6. | Stockholders’
Equity, continued |
2020 Stock Incentive Plan
A summary of activity related to restricted
stock units under the Company’s 2020 Stock Incentive Plan for the nine months ended September 30, 2023 is presented below:
| |
| | |
Weighted-Average | |
Stock Units | |
Shares | | |
Grant Date Fair Value | |
Non-vested as of January 1, 2023 | |
| 2,161 | | |
$ | 238.33 | |
Granted | |
| — | | |
$ | — | |
Vested | |
| (71 | ) | |
$ | 375.49 | |
Forfeited | |
| (74 | ) | |
$ | 255.09 | |
Non-vested as of September 30, 2023 | |
| 2,016 | | |
$ | 231.14 | |
As of September 30, 2023, the unamortized
compensation costs related to the unvested restricted stock units was approximately $14,000 which is to be amortized on a straight-line
basis over a weighted-average period of approximately 0.5 years.
For the three and nine months ended
September 30, 2023, 71 shares of restricted stock issued under the 2020 Stock Plan, were released with an intrinsic value of
approximately $92.00. For the three and nine months ended September 30, 2022, 599 and 668 shares of restricted stock
issued under the 2020 Stock Plan, were released with an intrinsic value of approximately $430 and $500, respectively.
2022 Plan
A summary of activity related to restricted
stock units under the Company’s Technical Team Retention Plan of 2022 (the “2022 Plan”) for the nine months ended September
30, 2023 is presented below:
| |
| | |
Weighted-Average | |
Stock Units | |
Shares | | |
Grant Date
Fair Value | |
Non-vested as of January 1, 2023 | |
| 3,700 | | |
$ | 52.00 | |
Granted | |
| — | | |
$ | — | |
Vested | |
| — | | |
$ | — | |
Forfeited | |
| (250 | ) | |
$ | 52.00 | |
Non-vested as of September 30, 2023 | |
| 3,450 | | |
$ | 52.00 | |
As of September 30, 2023, the unamortized
compensation cost related to the unvested restricted stock units was approximately $130,000 which is to be amortized on a straight-line
basis over a weighted-average period of approximately 2.3 years. For the three and nine months ended September 30, 2023 and
2022, no shares of restricted stock issued under the 2022 Plan were released.
February 2023 Offering
On January 31, 2023, the Company entered
into a securities purchase agreement with certain institutional investors, pursuant to which the Company agreed to issue and sell to
such investors (i) in a registered direct offering, 201,544 shares of common stock and pre-funded warrants (the “February
2023 Pre-Funded Warrants”) to purchase up to 381,762 shares of common stock, at an exercise price of $0.0001 per
share of common stock, and (ii) in a concurrent private placement, common stock purchase warrants, exercisable for an aggregate of up
to 874,959 shares of common stock, at an exercise price of $10.49 per share of common stock (the “February 2023
Offering”). In February and March of 2023, all the February 2023 Pre-Funded Warrants were exercised for cash.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 6. | Stockholders’
Equity, continued |
On February 3, 2023, the Company closed
the February 2023 Offering, and received net proceeds of approximately $5.3 million after deducting placement agent fees and other
offering expenses payable by the Company.
Also, in connection with the February
2023 Offering, on January 31, 2023, the Company entered into a placement agency agreement with Maxim, pursuant to which Maxim agreed
to act as placement agent on a “best efforts” basis in connection with the offering and (ii) the Company agreed to pay Maxim
an aggregate fee equal to 8.0% of the gross proceeds raised in the offering.
Also in connection with the offering,
the Company entered into an amendment (the “Amendment”) to the securities purchase agreement, dated as of November 29, 2022,
by and between the Company and certain institutional investors (the “November Purchase Agreement”) approved by a certain
investor (the “November Investor”) who purchased at least 50.1% in interest of the shares of Common Stock and the pre-funded
warrants to purchase shares of Common Stock, if any, based on the initial subscription amounts under the November Purchase Agreement,
pursuant to Section 5.5 of the November Purchase Agreement. Pursuant to the Amendment, Section 4.11 of the November Purchase Agreement,
which prohibits the Company’s ability to issue shares of Common Stock or Common Stock Equivalents (as defined in the November Purchase
Agreement) or filing any registration statement or amendment or supplement thereto under the Securities Act, until ninety (90)
days after the closing date of the transactions contemplated by the November Purchase Agreement, was amended to permit the offering discussed
above and the issuance and sale of the securities offered and sold in such offering.
March 2023 Offering
On March 27, 2023, the Company entered
into a securities purchase agreement with certain institutional investors, pursuant to which the Company agreed to issue and sell to
such investors (i) in a registered direct offering, 837,207 shares of common stock of the Company and (ii) in a concurrent
private placement, common stock purchase warrants, exercisable for an aggregate of up to 1,674,414 shares of common stock,
at an exercise price of $1.91 per share (the “March 2023 Offering”).
On March 29, 2023, the Company closed
the March 2023 Offering and received net proceeds of approximately $1.6 million, after deducting fees payable to the financial advisor
and other offering expenses.
April 2023 Offering
On April 7, 2023, the Company entered
into a securities purchase agreement with certain institutional investors, pursuant to which the Company issued and sold to such investors
(i) in a registered direct offering, 743,066 shares of common stock of the Company and (ii) in a concurrent private placement,
common stock purchase warrants exercisable for an aggregate of up to 1,486,132 shares of Common Stock, at an exercise price
of $1.41 per share of Common Stock (the “April 2023 Offering”).
On April 12, 2023, the Company closed
the April 2023 Offering and received net proceeds of approximately $1.0 million, after deducting fees payable to the financial advisor
and other offering expenses.
Warrants for Shares of Common Stock
A summary of the warrant activity
and related information for the nine months ended September 30, 2023 and 2022 is provided as follows.
In connection with February 2023 Offering,
the Company issued Common Stock Purchase Warrants to investors to purchase up to 874,959 shares of the Company’s common
stock, at an exercise price of $10.49 per share. The grant date fair value of such warrants was $5,600,000, which was recorded as
a liability with the offset recorded to additional paid-in capital on the condensed consolidated balance sheets. The fair value of such
warrants was determined using the Black-Scholes Model based on the following weighted average assumption: common stock price on the date
of grant of $8.90; expected yield of 0.0%; expected volatility of 96%; risk-free interest rate of 3.67% and expected life
of 5 years.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 6. | Stockholders’
Equity, continued |
In connection with March 2023 Offering,
the Company issued Common Stock Purchase Warrants to investors to purchase up to 1,674,414 shares of the Company’s common
stock, at an exercise price of $1.91 per share. The grant date fair value of such warrant was $2,113,000, which was recorded as
equity. The fair value of such warrants was determined using the Black-Scholes Model based on the following weighted average assumption:
common stock price on the date of grant of $1.66; expected yield of 0.0%; expected volatility of 104%; risk-free interest rate
of 3.67% and expected life of 5 years.
In connection with April 2023 Offering,
the Company issued Common Stock Purchase Warrants to investors to purchase up to 1,486,132 shares of the Company’s common
stock, at an exercise price of $1.41 per share. The grant date fair value of such warrant was $1,596,000, which was recorded as
equity. The fair value of such warrants was determined using the Black-Scholes Model based on the following weighted average assumption:
common stock price on the date of grant of $1.32; expected yield of 0%; expected volatility of 115.6%; risk-free interest rate
of 3.46% and expected life of 5 years.
During the three months ended September
30, 2023, 510,000 warrants to purchase common stock were exercised for cash, resulting in net proceeds of approximately $617,000.
There were no exercises of warrants to purchase common stock in the three months ended September 30, 2022.
Warrant Inducement - May 2023
On May 15, 2023, the Company entered
into warrant exercise inducement offer letters (the “May Inducement Letters”) with the holders of common stock purchase warrants
exercisable for an aggregate of up to 1,486,132 shares of common stock at an exercise price of $1.41 per share issued
on April 12, 2023 (the “April Warrants”). The April Warrant holders agreed to exercise for cash April Warrants to purchase
up to 1,486,132 shares of common stock in exchange for the Company’s agreement to issue 2,972,264 new warrants
(the “May Inducement Warrants”) on substantially the same terms as the April Warrants. The Company received net proceeds
of approximately $1.9 million from the exercise of the April Warrants. Each May Inducement Warrant is exercisable at a price per
share of common stock of $1.33, which was equal to the Minimum Price (as defined by the Nasdaq Listing Rules).
Each May Inducement Warrant is immediately
exercisable upon issuance and will expire on the fifth anniversary of its issuance. The exercise price of the May Inducement Warrants
is subject to appropriate adjustment in the event of recapitalization events, stock dividends, stock splits, stock combinations, reclassifications,
reorganizations or similar events affecting the Company’s common stock. The May Inducement Warrants are callable by the Company
at a redemption price of $0.50 per Inducement Warrant, provided that the resale of the shares of common stock underlying the May
Inducement Warrants are then registered or may be resold under Rule 144 under the Securities Act.
Warrant Inducement - July 2023
On July 26, 2023, the Company entered
into warrant exercise inducement offer letters (the “July Inducement Letters”) with holders of the May Inducement Warrants
pursuant to which the Company agreed to issue new inducement warrants (the “July Inducement Warrants”) to purchase a number
of shares of Common Stock equal to 100% of the number of shares of Common Stock received upon exercise of the May Inducement Warrants
during the period provided for in the July Inducement Letters, with such July Inducement Warrants to be issued on substantially the same
terms as the May Inducement Warrants. The holders exercised 510,000 of the May Inducement Warrants pursuant to certain of the
July Inducement Letters, and the Company received net proceeds of approximately $617,000 from such exercises. In exchange for the
exercises of the May Inducement Warrants, the Company issued July Inducement Warrants exercisable for an aggregate of up to 510,000 shares
of common stock at an exercise price of $1.29 per share.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 6. | Stockholders’
Equity, continued |
Each July Inducement Warrant was immediately
exercisable upon issuance and will expire on the fifth anniversary of its issuance. The exercise price of the July Inducement
Warrants is subject to appropriate adjustment in the event of recapitalization events, stock dividends, stock splits, stock combinations,
reclassifications, reorganizations or similar events affecting the Company’s common stock. The July Inducement Warrants are callable
by the Company at a redemption price of $0.50 per July Inducement Warrant, provided that the resale of the shares of common stock
underlying the July Inducement Warrants are then registered or may be resold under Rule 144 under the Securities Act.
Information regarding warrants for
common stock outstanding and exercisable as of September 30, 2023 is as follows:
| |
Warrants | | |
Weighted Average | | |
Warrants | |
Exercise | |
Outstanding as of | | |
Remaining | | |
Exercisable as of | |
Price | |
September 30, 2023 | | |
Life (years) | | |
September 30, 2023 | |
$1.29 - $1.91 | |
| 4,716,784 | | |
| 4.6 | | |
| 4,716,784 | |
$10.49 | |
| 874,959 | | |
| 4.3 | | |
| 874,959 | |
$99.70 | |
| 1,944 | | |
| 3.9 | | |
| 1,944 | |
$152.00 | |
| 400 | | |
| 3.2 | | |
| 400 | |
$200.00 - $12,500.00 | |
| 41,203 | | |
| 1.9 | | |
| 41,103 | |
$5.45* | |
| 5,635,290 | | |
| 4.5 | | |
| 5,635,190 | |
Information regarding warrants for
common stock outstanding and exercisable as of December 31, 2022 is as follows:
| |
Warrants | | |
Weighted Average | | |
Warrants | |
Exercise | |
Outstanding as of | | |
Remaining | | |
Exercisable as of | |
Price | |
December 31, 2022 | | |
Life (years) | | |
December 31, 2022 | |
$14.00 | |
| 1,187,145 | | |
| 4.9 | | |
| 1,080,001 | |
$50.00 | |
| 20,971 | | |
| 4.6 | | |
| 20,971 | |
$99.70 - $261.00 | |
| 18,434 | | |
| 2.6 | | |
| 16,390 | |
$300.00 - $980.00 | |
| 24,799 | | |
| 2.6 | | |
| 24,799 | |
$1,580.00 - $12,500.00 | |
| 1,766 | | |
| 0.2 | | |
| 1,766 | |
$31.55* | |
| 1,253,115 | | |
| 4.8 | | |
| 1,143,927 | |
Warrants exercisable as of December
31, 2022 exclude warrants to purchase 100 shares of common stock issued to a marketing firm, which vest upon the achievement
of certain milestones, warrants to purchase 1,944 shares of common stock issued to Maxim which became exercisable on February
15, 2023, and warrants to purchase 107,144 shares of common stock issued to a Convertible Note Investor that require shareholder
approval prior to being exercisable, which was received at a special meeting of our stockholders held on January 24, 2023. Additionally,
warrants to purchase 207 shares of common stock which are shown above with a price of $1,580.00 are pre-funded warrants
under which the holder shall pay $20.00 per share to complete the exercise.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
The Company recorded a provision for
income taxes of $0 and $2,000 for the three and nine months ended September 30, 2023, respectively, and $0 and $2,000 for
the three and nine months ended September 30, 2022, respectively.
The Company’s effective tax
rate was (0.02)% for the nine months ended September 30, 2023 and 2022. The difference between the effective tax rate and the federal
statutory tax rate for the nine months ended September 30, 2023 and 2022 primarily relates to the valuation allowance on the Company’s
deferred tax assets.
For interim periods, the Company estimates
its annual effective income tax rate and applies the estimated rate to the year-to-date income or loss before income taxes. The Company
also computes the tax provision or benefit related to items reported separately and recognizes the items net of their related tax effect
in the interim periods in which they occur. The Company also recognizes the effect of changes in enacted tax laws or rates in the interim
periods in which the changes occur.
As of September 30, 2023 and December
31, 2022, the Company retains a full valuation allowance on its deferred tax assets. The realization of the Company’s deferred
tax assets depends primarily on its ability to generate taxable income in future periods. The amount of deferred tax assets considered
realizable in future periods may change as management continues to reassess the underlying factors it uses in estimating future taxable
income.
The provision for income taxes for
the three and nine months ended September 30, 2023 and 2022 was calculated on a jurisdiction basis.
| 8. | Commitments
and Contingencies |
Operating Leases
The Company leases office space under
a non-cancellable operating lease that was set to expire in January 2024. In May 2023, the Company signed a lease amendment that
extended the lease expiration date to June 30, 2029, and agreed to new monthly rates. The lease amendment was considered a lease modification
and the Company adjusted its right-of-use asset and operating lease liabilities accordingly as shown in the table below.
Operating lease rentals are expensed
on a straight-line basis over the life of the lease beginning on the date we take possession of the property. At lease inception, we
determine the lease term by assuming the exercise of those renewal options that are reasonably assured. The exercise of lease renewal
options is at our sole discretion. The lease term is used to determine whether a lease is financing or operating and is used to calculate
straight-line rent expense. Additionally, the depreciable life of leasehold improvements is limited by the expected lease term. Leases
with an initial term of 12 months or less are not recorded on the condensed consolidated balance sheet; we recognize lease
expense for these leases on a straight-line basis over the lease term.
The following table reflects our lease
assets and our lease liabilities at September 30, 2023 and December 31, 2022 (in thousands).
| |
September 30, | | |
December 31, | |
| |
2023 | | |
2022 | |
Assets: | |
| | | |
| | |
Operating lease right-of-use
assets | |
$ | 637 | | |
$ | 120 | |
| |
| | | |
| | |
Liabilities: | |
| | | |
| | |
Operating lease liabilities, current | |
$ | — | | |
$ | 154 | |
Operating lease liabilities, non-current | |
$ | 635 | | |
$ | 39 | |
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 8. | Commitments
and Contingencies, continued |
Operating lease right-of-use assets
are included in other assets. Operating lease liabilities, current, are included in accrued liabilities and operating lease liabilities,
non-current, are include in other liabilities.
Lease Costs:
The components of lease costs were
as follows (in thousands):
| |
Three Months Ended | | |
Nine Months Ended | |
| |
September 30, 2023 | | |
September 30, 2023 | |
Operating lease cost | |
$ | 42 | | |
$ | 97 | |
Short term lease cost | |
| 13 | | |
| 41 | |
Total lease cost | |
$ | 55 | | |
$ | 138 | |
As of September 30, 2023, the maturity
of operating lease liabilities was as follows:
(in thousands) | |
| |
Payments due in: | |
| | |
Year ending December 31, 2023 (remaining 3 months) | |
$ | 21 | |
Year ending December 31, 2024 | |
| 62 | |
Year ending December 31, 2025 | |
| 183 | |
Year ending December 31, 2026 | |
| 189 | |
Year ending December 31, 2027 | |
| 194 | |
Thereafter | |
| 303 | |
Total minimum lease payments | |
| 952 | |
Less: Amounts representing interest | |
| (317 | ) |
Present value of capital lease obligations | |
$ | 635 | |
Lease Term and Discount Rate:
| |
September 30, 2023 | |
Weighted-average remaining lease term (in years) | |
| 5.75 | |
Weighted-average discount rate | |
| 13.0 | % |
Other Information:
Supplemental cash flow information
related to leases was as follows (in thousands):
| |
Three Months Ended | | |
Nine Months Ended | |
| |
September 30, 2023 | | |
September 30, 2023 | |
Operating cash outflows from operating leases | |
$ | 43 | | |
$ | 129 | |
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 8. | Commitments
and Contingencies, continued |
Finance Lease
During August 2020, the Company entered
into a lease agreement for equipment under a capital lease with a term of 36 months. The equipment under the lease is collateral
for the agreement and is included within property and equipment, net on the condensed consolidated balance sheets. The lease expired
in August 2023.
Management Team Retention Bonus
On September 1, 2022, the Company
adopted its Management Team Retention Bonus Plan (the “Retention Plan”), to incentivize certain management level employees
(the “Managers”) to remain intact through and shortly following a potential “Change of Control” (as defined in
the Retention Plan). The aggregate Retention Plan bonus amounts for all Managers was $1,250,000.
The Retention Plan provided that each
Manager is eligible to receive a lump sum cash amount under the Retention Plan, on the earlier of the six-month anniversary of the date
of a Change of Control or at the time of such Manager’s involuntary termination other than for “Cause” (as defined
in the Retention Plan) or termination for “Good Reason” (as defined in the Retention Plan). The Retention Plan expired on
June 30, 2023 unused, and no accruals were made.
Contingencies
In the normal course of business,
the Company may become involved in legal proceedings. The Company will accrue a liability for such matters when it is probable that a
liability has been incurred and the amount can be reasonably estimated. When only a range of a possible loss can be established, the
most probable amount in the range is accrued. If no amount within this range is a better estimate than any other amount within the range,
the minimum amount in the range is accrued. The accrual for a litigation loss contingency might include, for example, estimates of potential
damages, outside legal fees and other directly related costs expected to be incurred.
The Company’s management does
not believe that any such matters, individually or in the aggregate, will have a materially adverse effect on the Company’s condensed
consolidated financial statements.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
Helge Kristensen
Mr. Kristensen has served as
a member of the Company’s board of directors since 2010. Mr. Kristensen serves as vice president of Hansong Technology, an
original device manufacturer of audio products based in China, president of Platin Gate Aps, a company with focus on service-branding
in lifestyle products as well as pro line products based in Denmark and co-founder and director of Inizio Capital, an investment company
based in the Cayman Islands.
For the three months ended September
30, 2023 and 2022, Hansong Technology purchased modules from the Company of approximately $20,000 and $146,000, respectively, and
made payments to the Company of approximately $0 and $191,000, respectively. For the three months ended September 30, 2023 and 2022,
Hansong Technology sold speaker products to the Company of approximately $24,000 and $908,000, respectively, and the Company made
payments to Hansong Technology of approximately $50,000 and $516,000, respectively.
For the nine months ended September
30, 2023 and 2022, Hansong Technology purchased modules from the Company of approximately $69,000 and $337,000, respectively, and
made payments to the Company of approximately $189,000 and $191,000, respectively. For the nine months ended September 30, 2023
and 2022, Hansong Technology sold speaker products to the Company of approximately $83,000 and $1,367,000, respectively, and the
Company made payments to Hansong Technology of approximately $1,103,000 and $1,306,000, respectively.
At September 30, 2023 and 2022, the
Company owed Hansong Technology approximately $324,000 and $851,000, respectively. At September 30, 2023 and 2022, Hansong Technology
owed the Company approximately $49,000 and $146,000, respectively.
As of September 30, 2023 and December
31, 2022, Mr. Kristensen owned less than 1.0% of the outstanding shares of the Company’s common stock.
David Howitt
Mr. Howitt has served as a member
of the Company’s board of directors since December 2021. Since March 2004, Mr. Howitt has served as the founder and CEO of Meriwether
Group LLC (“MWG”), a strategic consulting firm that works with disruptive consumer brands by integrating their visions, developing
growth strategies, scaling their brands, and increasing revenue in order to build enterprise value. MWG, which is also majority-owned
by Mr. Howitt, owns a 25% general partner interest in Meriwether Group Capital Hero Fund LP (“Meriwether”).
On September 8, 2023, the Company
entered into a Loan and Security Agreement with Meriwether. Pursuant to the Loan and Security Agreement, Meriwether provided the Company
with a term loan in the principal amount of $650,000 that is scheduled to mature on November 7, 2023, subject to further extension.
See Note 4 Short-Term Loan for additional information.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
The Company operates in one business
segment. Our chief decision-maker, the President and Chief Executive Officer, evaluates our performance based on company-wide consolidated
results.
Net revenue from customers is designated
based on the geographic region to which the product is delivered. Net revenue by geographic region for the three and nine months ended
September 30, 2023 and 2022 was as follows:
| |
For the Three Months Ended | | |
For the Nine Months Ended | |
| |
September 30, | | |
September 30, | |
(in thousands) | |
2023 | | |
2022 | | |
2023 | | |
2022 | |
Asia Pacific | |
$ | 252 | | |
$ | 631 | | |
$ | 850 | | |
$ | 1,357 | |
North America | |
| 504 | | |
| 244 | | |
| 769 | | |
| 681 | |
Europe | |
| 8 | | |
| 62 | | |
| 39 | | |
| 411 | |
Other | |
| 5 | | |
| — | | |
| 5 | | |
| — | |
Total | |
$ | 769 | | |
$ | 937 | | |
$ | 1,663 | | |
$ | 2,449 | |
Substantially all of our long-lived
assets are located in the United States.
October 2023 Public Offering
On October 17, 2023, the Company completed
a public offering consisting of an aggregate of 87,000 units (each a “Unit” and collectively, the “Units”),
with each Unit consisting of (A) one (1) share of the Company’s series B convertible preferred stock, par value $0.0001 per
share (the “Series B Preferred Stock), and (B) two series B preferred stock purchase warrants (each, a “Preferred Warrant”
and collectively, the “Preferred Warrants”), with each Preferred Warrant exercisable for one share of Series B
Preferred Stock (the “Preferred Warrant Shares”), at the public offering price of $55.00 per Unit. The Preferred Warrants
are immediately exercisable, each with an exercise price of $55.00 and expire on October 17, 2025. The offering price of $55.00 per
Unit reflects the issuance of the Series B Preferred Stock with an original issue discount of 45%.
The gross proceeds to the Company
from the offering were approximately $4.8 million, prior to underwriting discounts, commissions, and offering expenses. Subsequent
to the pricing of the offering, the Company entered into letter agreements with certain holders of outstanding common stock purchase
warrants, pursuant to which the Company agreed to purchase from the holders an aggregate of 1,674,414 warrants with an exercise
price of $1.91, 2,462,264 warrants with an exercise price of $1.33 and 510,000 warrants with an exercise price
of $1.29 (collectively, the “Existing Warrants”), for $0.50 per Existing Warrant. The Company used $2.3 million
of the $4.8 million gross proceeds discussed above to repurchase the Existing Warrants on October 17, 2023, and expects to use the
remainder of the proceeds from the offering for working capital and general corporate purposes and to potentially repay outstanding indebtedness.
WISA TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS
For the Nine Months Ended September 30, 2023 and
2022
(unaudited)
| 11. | Subsequent
Event, continued |
Certificate of Designation of Series
B Preferred Stock
On October 16, 2023, the Company filed
a Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock (the “Certificate of
Designation”) with the Secretary of State of the State of Delaware designating 375,000 shares of the Company’s
authorized preferred stock as Series B Preferred Stock, with a liquidation preference of $100.00 per share, and further establishing
the powers, preferences and rights of the shares of Series B Preferred Stock and the qualifications, limitations or restrictions thereof.
The Series B Preferred Stock does not have voting rights, except as required by Delaware law and other limited circumstances. Dividends
on the Series B Preferred Stock shall be paid in-kind (“PIK dividends”) in additional shares of Series B Preferred Stock
based on the stated value of $100.00 per share at the dividend rate of 20.0% per annum (the “Dividend Rate”). The
PIK dividends will be paid to holders of the Series B Preferred Stock of record at the close of business on the one-year anniversary
of the closing of the offering (the “Dividend Record Date”). PIK dividends on each share of Series B Preferred Stock shall
be paid three business days after the Dividend Record Date in additional fully paid and nonassessable, registered shares of Series B
Preferred Stock in a number equal to the quotient obtained by dividing (A) the product obtained by multiplying (i) the Dividend Rate
and (ii) the stated value of $100.00 per share, by (B) $55.00, the offering price per Unit.
The Series B Preferred Stock has a
term of two (2) years and is convertible at the option of the holder at any time into shares of Common Stock at a conversion
price of $0.4147, which is subject to adjustment. If any shares of Series B Preferred Stock are outstanding at the end of the two (2)
year term, then the Company will promptly redeem all of such outstanding shares of Series B Preferred Stock on a pro rata basis among
all of the holders of Series B Preferred Stock commencing on October 17, 2025, in cash at a price per share of Series B Preferred Stock
equal to the sum of (x) 100% of the stated value plus (y) all accrued and unpaid dividends and (z) all other amounts due in respect
of the Series B Preferred Stock. If, on October 17, 2025, the Company is unable to redeem such outstanding Series B Preferred Stock in
cash due to prohibitions under Delaware law, then the Company shall, provided there is no prohibition under Delaware law, redeem the
Series B Preferred Stock by paying to the holders the unpaid cash redemption payment in duly authorized, validly issued, fully paid and
non-assessable shares of Common Stock equal in number to the quotient obtained by dividing such unpaid amount by the closing price of
the Common Stock on the Nasdaq Capital Market on October 17, 2025.
Short-Term Loan Extension
On October 10, 2023, Meriwether extended
the maturity date of the Meriwether Loan to December 7, 2023 for a fee of $20,000.
Up to 100,000,000 Units
(Each Unit Consisting of One Share of Common Stock and
One Warrant Exercisable for One Share of Common Stock)
Up to 100,000,000 Pre-Funded Units
(Each Pre-Funded Unit Consisting of One Pre-Funded Warrant Exercisable for One Share of Common Stock and One Warrant Exercisable for
One Share of Common Stock)
100,000,000 Shares of Common Stock Underlying
the Warrants
100,000,000 Shares of Common Stock Underlying
the Pre-Funded Warrants
WISA TECHNOLOGIES, INC.
PROSPECTUS
Maxim Group LLC
The date of this prospectus is ,
2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and
expenses, other than the placement agent fees and expenses, payable by the registrant in connection with the sale of securities being
registered hereby. All amounts are estimates except for the SEC registration fee and the Financial Industry Regulatory Authority, or
FINRA, filing fee.
|
|
|
Amount
to
be paid |
|
SEC registration fee |
|
$ |
2,952.00 |
|
FINRA filing fee |
|
|
3,500.00 |
|
Legal fees and expenses |
|
|
100,000.00 |
|
Accounting fees and expenses |
|
|
60,000.00 |
|
Printing and engraving expenses |
|
|
15,000.00 |
|
Transfer agent and registrar fees |
|
|
5,000.00 |
|
Miscellaneous fees and expenses |
|
|
5,000.00 |
|
Total |
|
$ |
191,452.00 |
|
Item 14. Indemnification of Directors and
Officers.
Section 145 of the General Corporation Law
of the State of Delaware provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made, party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or
agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted
in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect
to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation
may indemnify any persons who are, were or are a party to any threatened, pending or completed action or suit by or in the right of the
corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with
the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to
be in or not opposed to the corporation’s best interests, provided that no indemnification is permitted without judicial approval
if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which
such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation
to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against
any liability asserted against him and incurred by him in any such capacity, or arising out of his or her status as such, whether or
not the corporation would otherwise have the power to indemnify him under Section 145.
Our bylaws provide that we must indemnify our
directors and officers to the fullest extent permitted by the DGCL and must also pay expenses incurred in defending any such proceeding
in advance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all amounts so
advanced if it should be determined ultimately that such person is not entitled to be indemnified.
We have entered into indemnification agreements
with certain of our executive officers and directors pursuant to which we have agreed to indemnify such persons against all expenses
and liabilities incurred or paid by such person in connection with any proceeding arising from the fact that such person is or was an
officer or director of our company, and to advance expenses as incurred by or on behalf of such person in connection therewith.
The indemnification rights set forth above shall
not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of our certificate
of incorporation, as amended, our bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
We maintain standard policies of insurance that
provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful
act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
See “Item 17. Undertakings” for a
description of the SEC’s position regarding such indemnification provisions.
We plan to enter into a placement agency agreement
that provides that we are to indemnify the placement agent under certain circumstances and the placement agent is obligated, under certain
circumstances, to indemnify our directors, officers and controlling persons against specified liabilities, including liabilities under
the Securities Act of 1933, as amended (the “Securities Act”).
Item 15. Recent Sales of Unregistered Securities.
The following is a summary
of all of our securities sold by us within the past three years which were not registered under the Securities Act. The
share and per share information included in the descriptions of the below transactions occurring prior to January 27, 2023, have
not been adjusted to give effect to the 1-for-100 reverse split of the Company’s outstanding shares of Common Stock, par value
$0.0001, or the Common Stock, of the Company, effective as of 5:00 pm, Eastern time, on January 26, 2023 and which began trading
on Nasdaq, on a split-adjusted basis at the start of trading on January 27, 2023:
January 18, 2021 Inducement Agreements
and January 19, 2021 Inducement Agreements
On January 18, 2021, the Company entered
into letter agreements (the “January 18 Inducement Agreements”) with holders of Common Stock purchase warrants previously
issued by the Company to the holders pursuant to two private placements conducted concurrently with registered direct public offerings
of the Company’s securities that closed on June 8, 2020 and June 11, 2020, respectively (collectively, the “January 18
Original Warrants”).
Pursuant to the January 18 Inducement Agreements,
as an inducement and in consideration for a holder’s exercise of the January 18 Original Warrants for some or all of the shares
of Common Stock available thereunder, the Company delivered to each such holder new Common Stock purchase warrants (the “January 18
New Warrants”) to purchase a number of shares of Common Stock equal to 25% of the number of shares of Common Stock issued to such
holder in connection with its exercise of its January 18 Original Warrants. The January 18 New Warrants are immediately exercisable
upon issuance at an exercise price of $4.20 per share, which is greater than the closing price of the Common Stock of $4.16 on Nasdaq
on January 15, 2021, have an expiration date of January 19, 2026 and are exercisable on a cashless basis if the January 18
New Warrant shares have not been registered by the Company on a registration statement on or before 6 months after the date of issuance
and there is no currently effective registration statement covering the January 18 New Warrants at the time of exercise.
On January 19, 2021, the Company entered
into letter agreements (the “January 19 Inducement Agreements” and, together with the January 18, 2021 Inducement
Agreements, the “Inducement Agreements”) with holders of Common Stock purchase warrants (collectively, the “January 19
Original Warrants” and, together with the January 18 Original Warrants, the “Original Warrants”) previously issued
by the Company to the holders pursuant to (i) a private placement in February 2020 and (ii) settlement agreements and
releases, each dated November 9, 2020.
Pursuant to the January 19 Inducement Agreements,
as an inducement and in consideration for a holder’s exercise of the January 19 Original Warrants for some or all of the shares
of Common Stock available thereunder, the Company delivered to each such holder new Common Stock purchase warrants (the “January 19
New Warrants” and, together with the January 18 New Warrants, the “January New Warrants”) to purchase a number
of shares of Common Stock equal to 25% of the number of shares of Common Stock issued to such holder in connection with its exercise
of its January 19 Original Warrants. The January 19 New Warrants are immediately exercisable upon issuance at an exercise price
of $4.20 per share, which is greater than the closing price of the Common Stock of $4.16 on Nasdaq on January 15, 2021, have an
expiration date of January 20, 2026 and are exercisable on a cashless basis if the January 19 New Warrant shares have not been
registered by the Company on a registration statement on or before 6 months after the date of issuance and there is no currently effective
registration statement covering the January 19 New Warrants at the time of exercise.
Pursuant to the Inducement Agreements, the holders
exercised the Original Warrants to purchase an aggregate of 1,221,676 shares of Common Stock, resulting in gross proceeds to the Company
of approximately $3,147,000, and the holders received the January New Warrants exercisable for an aggregate of up to 305,419 shares
of Common Stock.
June 2021 Exchange Agreement
The Company previously entered into a Securities
Purchase Agreement, dated as of April 18, 2019, with an existing shareholder (the “Shareholder”), pursuant to which
the Company issued 250,000 shares of our Series A 8% Convertible Preferred Stock (the “Original Securities”), par value
$0.0001 per share.
On June 4, 2021, the Company and the Shareholder
entered into that certain Exchange Agreement (the “Exchange Agreement”) pursuant to which the Company exchanged with the
Shareholder the Original Securities held by the Shareholder in exchange for: (i) 250,000 shares of Common Stock; and (ii) warrants
(the “June 2021Warrants”) to purchase up to 187,500 shares of Common Stock.
The June 2021 Warrants were exercisable
beginning on June 4, 2021 and will be exercisable for a period of five (5) years and four (4) months thereafter. The exercise
price with respect to the June 2021 Warrants is $3.00 per share (the “Exercise Price”). The Exercise Price and the number
of shares of Common Stock issuable upon exercise of the Warrants are subject to adjustment upon certain events, such as stock splits,
combinations, dividends, distributions, reclassifications, mergers or other corporate change and dilutive issuances. The issuance of
the Exchange Securities was made in reliance upon an exemption from registration pursuant to Section 3(a)(9) of the Securities
Act.
June 2021 Inducement Agreements
On June 7, 2021, the Company entered into
letter agreements (the “June 2021 Inducement Agreements”) with holders of Common Stock purchase warrants previously
issued by the Company to the holders pursuant to two private placements conducted concurrently with registered direct public offerings
of the Company’s securities that closed on June 8, 2020 and June 11, 2020, and which were still outstanding and had not
been previously exercised (the “June 2021 Existing Warrants”).
Pursuant to the June 2021 Inducement Agreements,
as an inducement and in consideration for a holder’s exercise of the June 2021 Existing Warrants for some or all of the shares
of Common Stock available thereunder, the Company delivered to each such holder new Common Stock purchase warrants (the “June 2021
New Warrants”) to purchase a number of shares of Common Stock equal to 25% of the number of shares of Common Stock issued to such
holder in connection with its exercise of its June 2021 Existing Warrants. The June 2021 New Warrants are immediately exercisable
upon issuance at an exercise price of $4.46 per share, which is greater than the average closing price of the Common Stock on Nasdaq
for the five trading days prior to and including June 7, 2021, have an expiration date of June 8, 2026 and are exercisable
on a cashless basis if the shares of Common Stock issuable upon exercise of the June 2021 New Warrants have not been registered
by the Company on a registration statement on or before 6 months after the date of issuance and there is no currently effective registration
statement covering the June 2021 New Warrants at the time of exercise. Pursuant to the June 2021 Inducement Agreements, holders
agreed to exercise June 2021 Existing Warrants for an aggregate of 1,000,000 shares of Common Stock, resulting in gross proceeds
to the Company of $2,584,800, and the holders received June 2021 New Warrants exercisable for an aggregate of up to 250,000 shares
of Common Stock.
September 2021 Equity Grants
In connection
with the appointment of Eric Almgren as Chief Strategist of the Company, an inducement grant of 310,000 shares (the “inducement
shares”), representing 2% of the outstanding shares of the Company on that date, was made to Mr. Almgren on September 13,
2021 outside of the Company’s existing incentive plans. The inducement shares were issued pursuant to Section 4(a)(2) of
the Securities Act.
December 2021
Warrant Issuances
On December 16,
2021, the Company granted warrants to purchase up to 25,000 shares of Common Stock to a service provider in partial consideration for
services rendered. The warrants have a five year life, an exercise price of $1.52 per share and are fully vested.
On December 16,
2021, the Company granted warrants to purchase up to 15,000 shares of Common Stock to a service provider in partial consideration for
services rendered. The warrants have a five year life, an exercise price of $1.52 per share and are fully vested.
August 2022 Private Placement
On August 15, 2022, the Company completed
a private placement (the “August 2022 Private Placement”) of a senior secured convertible instrument (the “August 2022
Note”) and a warrant (the “August 2022 Warrant”) to purchase 2,097,022 shares of Common Stock at an exercise price
of $0.997 per share. The August 2022 Note and August 2022 Warrant were issued pursuant to a securities purchase agreement,
entered into as of August 15, 2022, by and between the Company and an institutional investor (the “August 2022 Investor”).
The August 2022 Private Placement resulted in gross proceeds of $3,000,000, before fees and other expenses associated with the transaction,
including but not limited to, a $105,000 commitment fee payable to the August 2022 Investor. Additionally, the Company agreed to
issue to Maxim Group LLC, the placement agent for the August 2022 Private Placement, in consideration for $100 in cash, a warrant
to purchase up to an aggregate of 194,384 shares of Common Stock at an exercise price of $0.997 per share, subject to adjustment.
Effective August 24,
2022, the Company and the August 2022 Investor agreed to amend Section 3.1(b) of the August 2022 Note to provide
that the Conversion Price (as defined in the August 2022 Note) could not be lower than $0.50 (the “Floor Price”) until
stockholder approval has been obtained, after which stockholder approval for the Floor Price may be reduced to no lower than $0.25. The
changes were effected by cancellation of the August 2022 Note and the issuance of a replacement senior secured convertible note
(the “New Convertible Note”) to the August 2022 Investor. The New Convertible Note contains identical terms as the August 2022
Note, except for the amendment to the Section 3.1(b) of the August 2022 Note.
December 2022 Issuance of Additional
Warrants
On November 28, 2022, the Company entered
into a waiver of rights with the August 2022 Investor, pursuant to which the August 2022 Investor agreed to waive certain prohibitions
under the August Purchase Agreement with respect to the December Public Offering in exchange for the issuance by the Company,
on the closing date of the December Public Offering, of the Additional Warrants. On December 1, 2022, the Company issued 53,571
Series A Warrants and 53,571 Series B Warrants to the August 2022 Investor. The Company’s obligation to issue shares
of Common Stock underlying the Additional Warrants was expressly conditioned upon stockholder approval of all of the transactions contemplated
by the August 2022 Purchase Agreement, and the transaction documents related thereto. Such stockholder approval was obtained at
the Company’s special meeting held on January 17, 2023.
February 2023 Warrant Issuances
On February 3, 2023, the Company issued
Common Stock purchase warrants exercisable for an aggregate of up to 874,959 shares of Common Stock, at an exercise price of $10.49 per
share.
March 2023 Warrant Issuances
On March 29, 2023, the Company issued Common
Stock purchase warrants exercisable for an aggregate of up to 1,674,414 shares of Common Stock, at an exercise price of $1.91 per share.
April 2023 Warrant Issuances
On April 12, 2023, the Company issued Common
Stock purchase warrants exercisable for an aggregate of up to 1,486,132 shares of Common Stock, at an exercise price of $1.41 per share.
May 2023 Warrant Inducements
On May 15, 2023, the Company entered into
letter agreements, or the May 2023 Inducement Agreements, with holders of Common Stock purchase warrants previously issued by the
Company to the holders pursuant to a private placement conducted concurrently with a registered direct public offering of the Company’s
securities that closed on April 12, 2023, and which were still outstanding and had not been previously exercised, or the April 2023
Existing Warrants.
Pursuant to the May 2023 Inducement Agreements,
as an inducement and in consideration for a holder’s exercise of the April 2023 Existing Warrants for some or all of the shares
of Common Stock available thereunder, the Company delivered to each such holder new Common Stock purchase warrants, or the May 2023
New Warrants, to purchase a number of shares of Common Stock equal to 200% of the number of shares of Common Stock issued to such holder
in connection with its exercise of its April 2023 Existing Warrants. The May 2023 New Warrants are immediately exercisable
upon issuance at an exercise price of $1.33 per share, have an expiration date of May 17, 2028 and are exercisable on a cashless
basis if the shares of Common Stock issuable upon exercise of the May 2023 New Warrants have not been registered by the Company
on a registration statement on or before six (6) months after the date of issuance and there is no currently effective registration
statement covering the May 2023 New Warrants at the time of exercise. Pursuant to the May 2023 Inducement Agreements, holders
agreed to exercise April 2023 Existing Warrants for an aggregate of 1,486,132 shares of Common Stock, resulting in gross proceeds
to the Company of approximately $2.1 million before deducting fees and other offering expenses payable by us.
July 2023 Warrant Inducements
On July 26, 2023, the Company entered into
warrant exercise inducement offer letters (the “July Inducement Letters”) with holders of the May Inducement Warrants
pursuant to which the Company agreed to issue new inducement warrants (the “July Inducement Warrants”) to purchase a
number of shares of Common Stock equal to 100% of the number of shares of Common Stock received upon exercise of the May Inducement
Warrants during the period provided for in the July Inducement Letters, with such July Inducement Warrants to be issued on
substantially the same terms as the May Inducement Warrants (“the July 2023 Warrant Inducement Transaction”). The
holders exercised 510,000 of the May Inducement Warrants pursuant to certain of the July Inducement Letters, and the Company
received aggregate gross proceeds of approximately $678,000 from such exercises. In exchange for the exercises of the May Inducement
Warrants, the Company issued July Inducement Warrants exercisable for an aggregate of up to 510,000 shares of Common Stock at an
exercise price of $1.29 per share. The inducement offering period closed at 5:00 p.m. EDT on August 8, 2023.
Each July Inducement Warrant was immediately
exercisable upon issuance and will expire on the fifth anniversary of its issuance. The exercise price of the July Inducement Warrants
is subject to appropriate adjustment in the event of recapitalization events, stock dividends, stock splits, stock combinations, reclassifications,
reorganizations or similar events affecting the Company’s Common Stock. The July Inducement Warrants are callable by the Company
at a redemption price of $0.50 per July Inducement Warrant, provided that the resale of the shares of Common Stock underlying the
July Inducement Warrants are then registered or may be resold under Rule 144 under the Securities Act.
December 2023 Warrant Inducements
On December 5, 2023, the Company entered into
warrant inducement letter agreements (collectively the “Inducement Agreements”) with certain holders (“Holders”)
of the Company’s Series B Convertible Preferred Stock purchase warrants (the “Existing Warrants”) pursuant to which,
the holders of the Existing Warrants agreed to a reduced exercise price of $35.72 per share of Series B Convertible Preferred Stock,
while maintaining the original fixed conversion price of $0.4147, upon the exercise of any Existing Warrants during the period from the
date of the Inducement Agreements until the later of (i) the day immediately preceding the Stockholder Approval Date (as defined in the
New Warrant referenced below), or (ii) January 15, 2024. As of February 2, 2024, the Inducement Period is still ongoing.
The aggregate gross proceeds to be received by the Company will depend
on the number of Existing Warrants actually exercised by the Holders. If all of the Existing Warrants are exercised in accordance with
the Inducement Agreements, the Company anticipates receiving aggregate gross proceeds of up to approximately $6.0 million from the exercise
of the Existing Warrants before deducting financial advisory fees and other expenses payable by the Company. There is no guarantee that
all of the Existing Warrants will be exercised by the Holders in accordance with the Inducement Agreements. As of February 2, 2024, the
Holders have exercised Existing Warrants to purchase 87,657 shares of Series B Preferred Stock, and we have received approximately $3.1
million in gross proceeds from such exercises.
In consideration of each Holders’ agreement
to exercise the Existing Warrants in accordance with the applicable Inducement Agreement, the Company agreed to issue each such Holder
the New Warrants, to purchase New Warrant Shares at a per share exercise price equal to $0.1482, which New Warrants will contain 4.99/9.99%
beneficial ownership limitations, be exercisable at any time on or after the Stockholder Approval Date and expire five years from the
Stockholder Approval Date.
2024 Bridge Note and Warrant
On January 22, 2024, the Company entered
into securities purchase agreements (the “2024 Bridge Purchase Agreements”), with the Holders, pursuant to which the Company
agreed to issue to the Holders promissory notes in the aggregate principal amount of $1,000,000 (the “2024 Bridge Promissory Notes”)
and common stock purchase warrants (the “2024 Bridge Warrants”) to purchase up to an aggregate of 10,000,000 shares of the
Company’s Common Stock, in consideration for $600,000 (the “2024 Bridge Private Placement”).
Each of the 2024 Bridge Promissory Notes
matures on the earlier to occur of: (i) July 17, 2024 and (ii) the full or partial exercise of certain Series B Preferred Stock purchase
warrants currently held by the Holders, issuable for at least 9,322 shares of the Series B Preferred Stock upon such full or partial
exercise. The 2024 Bridge Promissory Notes do not bear interest except upon the occurrence of an event of default. The 2024 Bridge Promissory
Notes are not convertible into shares of Common Stock or Series B Preferred Stock.
The
2024 Bridge Warrants are not exercisable until after the date that stockholder approval is obtained to approve each of (i) the issuance
of the 2024 Bridge Warrant Shares issuable upon the exercise of the 2024 Bridge Warrants, as may be required by the applicable rules
and regulations of The Nasdaq Stock Market LLC and (ii) if necessary, a proposal to amend the Certificate of Incorporation to increase
the authorized share capital of the Company to an amount sufficient to cover the 2024 Bridge Warrant Shares or to effectuate a reverse
stock split whereby the authorized share capital is not split and is sufficient to cover the 2024 Bridge Warrant Shares (and such reverse
split is effectuated) (“Bridge Warrant Stockholder Approval”), and will expire on the fifth (5th)
anniversary of the date on which Bridge Warrant Stockholder Approval is received and deemed effective under Delaware law. The exercise
price of the 2024 Bridge Warrants is subject to downward adjustment, upon any subsequent transaction at a price lower than the exercise
price then in effect and standard adjustments in the event of certain events, such as stock splits, combinations, dividends, distributions,
reclassifications, mergers or other corporate changes.
The exercise of the 2024 Bridge Warrants
is subject to beneficial ownership limitations such that each Holder may not exercise the 2024 Bridge Warrant to the extent that such
exercise would result in the Holder being the beneficial owner in excess of 4.99% (or, upon election of the Holder, 9.99%) of the outstanding
shares of Common Stock, which beneficial ownership limitation may be increased up to 9.99% upon notice to the Company, provided that
any increase in such limitation will not be effective until 61 days following notice to the Company.
The closing of the 2024 Bridge Private
Placement occurred on January 23, 2024, pursuant to which, the Company issued the 2024 Bridge Promissory Notes and the 2024 Bridge Warrants
to the Holders in accordance with the 2024 Bridge Purchase Agreements.
Unless otherwise stated, the sale and the issuance
of the foregoing securities were offered and sold in reliance upon exemptions from registration pursuant to Section 4(a)(2) of
the Securities Act and Rule 506 of Regulation D promulgated under the Securities Act, or Regulation
D. We made this determination based on the representations of each investor which included, in pertinent part, that each such investor
was either (A) an “accredited investor” within the meaning of Rule 501 of Regulation D or (B) a
“qualified institutional buyer” within the meaning of Rule 144A under the Securities Act and upon such
further representations from each investor that (i) such investor acquired the securities for his, her or its own account for investment
and not for the account of any other person and not with a view to or for distribution, assignment or resale in connection with any distribution
within the meaning of the Securities Act, (ii) such investor agreed not to sell or otherwise transfer the purchased securities
unless they are registered under the Securities Act and any applicable state securities laws, or an exemption or exemptions
from such registration are available, (iii) such investor had knowledge and experience in financial and business matters such that
he, she or it was capable of evaluating the merits and risks of an investment in us, (iv) such investor had access to all of our
documents, records, and books pertaining to the investment and was provided the opportunity to ask questions and receive answers regarding
the terms and conditions of the offering and to obtain any additional information which we possessed or were able to acquire without
unreasonable effort and expense, and (v) such investor had no need for the liquidity in its investment in us and could afford the
complete loss of such investment. In addition, there was no general solicitation or advertising for securities issued in reliance upon
these exemptions.
Item 16. Exhibits and Financial Statement
Schedules.
The list of exhibits in the Exhibit Index
to this registration statement is incorporated herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
|
(1) |
To file, during any period
in which offers or sales are being made, a post-effective amendment to this registration statement: |
i. To include any prospectus
required by section 10(a)(3) of the Securities Act of 1933;
ii. To reflect in the prospectus
any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table
in the effective registration statement.
iii. To include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to
such information in the registration statement; provided, however, that the undertakings set forth in paragraphs (1)(i), (1)(ii) and
(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended, that are incorporated by reference in this registration statement or is contained in
a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b)(3) shall be deemed
to be part of a registration statement relating to an offering and shall be deemed to be part of and included in the registration statement.
Each prospectus filed pursuant to Rule 424(b)(3) or (b)(7), as part of a registration statement in reliance on Rule 430(b) relating
to an offering pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933, shall be deemed to be part of and included in the registration statement as of the earlier of the date it
is first used after effectiveness or the date of the first Contract of Sale of such securities in the Offering described in this prospectus.
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such first effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such date of first use.
(5) That, for the purpose of determining
liability of the registrant under the Securities Act of 1933, as amended, to any purchaser in the initial distribution of the securities,
the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
i. Any preliminary prospectus
or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
ii. Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
iii. The portion of any other
free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
iv. Any other communication
that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any
liability under the Securities Act of 1933, as amended, each filing of the registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Beaverton, State of Oregon, on February 5, 2024.
|
WISA TECHNOLOGIES, INC. |
|
|
|
By: |
/s/
Brett Moyer |
|
|
Brett Moyer |
|
|
President and Chief Executive Officer |
Pursuant to the requirements of the Securities
Act of 1933, the following persons in the capacities and on the dates indicated have signed this registration statement below.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
BRETT MOYER |
|
Chief Executive Officer
and Director (principal executive officer) |
|
February 5, 2024 |
Brett Moyer |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Chief
Accounting Officer (principal financial officer and principal accounting officer) |
|
February
5, 2024 |
Gary Williams |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
February 5, 2024 |
Lisa Cummins |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
February 5, 2024 |
Dr. Jeffrey M. Gilbert |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
February 5, 2024 |
David Howitt |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
February 5, 2024 |
Helge Kristensen |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
February 5, 2024 |
Sriram Peruvemba |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
February 5, 2024 |
Robert Tobias |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
February 5, 2024 |
Wendy Wilson |
|
|
|
|
*
By: |
/s/
Brett Moyer |
|
|
Brett
Moyer, as attorney-in-fact |
|
EXHIBIT INDEX
Exhibit
No. |
|
Description |
1.1* |
|
Form of Placement
Agent Agreement by and between WiSA Technologies Inc. and Maxim Group LLC, as exclusive placement agent thereunder |
2.1 |
|
Certificate
of Conversion of Summit Semiconductor, Inc. (incorporated by reference to the Company’s Registration Statement on Form S-1/A
(File No. 333-224267) filed with the SEC on July 23, 2018). |
2.2 |
|
Plan
of Conversion of Summit Semiconductor, Inc.(incorporated by reference to the Company’s Registration Statement on Form S-1/A
(File No. 333-224267) filed with the SEC on July 23, 2018). |
3.1(i)(a) |
|
Certificate
of Incorporation of Summit Semiconductor, Inc. (Incorporated by reference to the Company’s Registration Statement on Form S-1/A
(File No. 333-224267) filed with the SEC on July 2, 2018) |
3.1(i)(b) |
|
Certificate
of Amendment to Certificate of Incorporation of Summit Semiconductor, Inc. (Incorporated by reference to the Company’s
Registration Statement on Form S-1/A (File No. 333-224267) filed with the SEC on July 25, 2018) |
3.1(i)(c) |
|
Certificate
of Amendment to Certificate of Incorporation of Summit Semiconductor, Inc. (Incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on September 14, 2018) |
3.1(i)(d) |
|
Certificate
of Amendment to Certificate of Incorporation of Summit Semiconductor, Inc. (Incorporated by reference to the Company's Current
Report on Form 8-K filed with the SEC on April 8, 2020) |
3.1(i)(e) |
|
Certificate
of Amendment of Certificate of Incorporation of the Company. (Incorporated by reference to the Company’s Current Report on
Form 8-K filed with the SEC on March 11, 2022) |
3.1(i)(f) |
|
Certificate
of Amendment to Certificate of Incorporation of WiSA Technologies, Inc. (Incorporated by reference to the Company’s Current
Report on Form 8-K filed with the SEC on January 26, 2023) |
3.1(i)(g) |
|
Certificate
of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock (Incorporated by reference to
the Company’s Current Report on Form 8-K filed with the SEC on October 19, 2023) |
3.1(i)(h) |
|
Bylaws
of Summit Semiconductor, Inc. (Incorporated by reference to the Company’s Registration Statement on Form S-1/A (File
No. 333-224267) filed with the SEC on July 2, 2018) |
4.1 |
|
Form of
Common Stock Certificate (incorporated by reference to the Company's Annual Report on Form 10-K filed with the SEC on March 29,
2019). |
4.2 |
|
Form of
Common Stock Purchase Warrant issued to holder of Series A 8% Senior Convertible Preferred Stock (incorporated by reference
to the Company's Registration Statement on Form S-1 (File No. 333-230952) filed with the SEC on April 19, 2019). |
4.3 |
|
Form of
Pre-Funded Common Stock Purchase Warrant (incorporated by reference to the Company's Quarterly Report on Form 10-Q filed with
the SEC on November 14, 2019). |
4.4 |
|
Form of
Amendment No. 1 to Series F Common Stock Purchase Warrant (incorporated by reference to the Company's Quarterly Report
on Form 10-Q filed with the SEC on November 14, 2019). |
4.5 |
|
Form of
Common Stock Purchase Warrant, dated February 2020 (incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on March 3, 2020). |
4.7 |
|
Form of
Senior Secured Convertible Instrument, dated March 2020 (incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on March 26, 2020). |
4.8 |
|
Form of
Common Stock Purchase Warrant, dated March 2020 (incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on March 26, 2020). |
4.9 |
|
Form of
Placement Agent Warrant, dated March 2020 (incorporated by reference to the Company's Current Report on Form 8-K filed
with the SEC on March 26, 2020). |
4.10 |
|
Form of
Common Stock Purchase Warrant (incorporated by reference to the Company's Current Report on Form 8-K filed with the SEC on June 5,
2020). |
4.11 |
|
Form of
Common Stock Purchase Warrant (incorporated by reference to the Company's Current Report on Form 8-K filed with the SEC on June 10,
2020). |
4.12 |
|
Form of
Amendment to Common Stock Purchase Warrant (incorporated by reference to the Company's Quarterly Report on Form 10-Q filed with
the SEC on November 10, 2020). |
4.13 |
|
Form of
Common Stock Purchase Warrant (incorporated by reference to the Company's Quarterly Report on Form 10-Q filed with the SEC on
November 10, 2020). |
4.14 |
|
Form of
Common Stock Purchase Warrant (incorporated by reference to the Company's Current Report on Form 8-K filed with the SEC on January 19,
2021). |
4.15 |
|
Form of Common Stock Purchase Warrant (incorporated by reference to the Company's Current Report on Form 8-K filed with the SEC on June 7, 2021). |
4.16 |
|
Form of Common Stock Purchase Warrant (incorporated by reference to the Company's Current Report on Form 8-K filed with the SEC on June 8, 2021). |
4.17 |
|
Form of Senior Secured Convertible Note (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on August 19, 2022). |
4.18 |
|
Form of Private Placement Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on August 19, 2022). |
4.19 |
|
Form of Placement Agent Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on August 19, 2022). |
4.20 |
|
Form of New Senior Secured Convertible Note (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on August 26, 2022). |
4.21 |
|
Form of Senior Indenture (incorporated by reference to the Company’s Registration Statement on Form S-3 (File No. 333-267211) filed with the SEC on September 1, 2022). |
4.22 |
|
Form of Subordinated Indenture (incorporated by reference to the Company’s Registration Statement on Form S-3 (File No. 333-267211) filed with the SEC on September 1, 2022). |
4.23 |
|
Warrant Amendment Agreement, dated November 21, 2022, by and between the Company and Maxim Group LLC (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on November 21, 2022). |
4.24 |
|
Form of Series A Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on December 2, 2022). |
4.25 |
|
Form of Series B Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on December 2, 2022). |
4.26 |
|
Form of Pre-Funded Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on December 2, 2022). |
4.27 |
|
Form of Voting Agreement (incorporated by reference to Amendment No. 2 to the Company’s Registration Statement on Form S-1 (File No. 333-268085) filed with the SEC on November 29, 2022). |
4.28 |
|
Form of Pre-Funded Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on February 3, 2023). |
4.29 |
|
Form of Private Placement Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on February 3, 2023). |
4.30 |
|
Form of Private Placement Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on March 29, 2023). |
4.31 |
|
Form of Private Placement Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on April 7, 2023). |
4.32 |
|
Form of Private Placement Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on April 12, 2023). |
4.33 |
|
Form of Inducement Warrant for March Warrants (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on May 17, 2023). |
4.34 |
|
Form of Inducement Warrant for April Warrants (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on May 17, 2023). |
4.35 |
|
Form of Inducement Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on August 1, 2023) |
4.36 |
|
Form of Warrant to Purchase Shares of Series B Convertible Preferred Stock (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on October 19, 2023) |
4.37 |
|
Form of Common Stock Purchase Warrant (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on December 6, 2023) |
4.38 |
|
Form of Promissory Note (incorporated by reference to the Company’s Current Report on Form 8-K
filed with the SEC on January 23, 2024) |
4.39 |
|
Form of Common Stock Purchase Warrant (incorporated by reference to the Company’s Current Report
on Form 8-K filed with the SEC on January 23, 2024) |
4.40* |
|
Form of Warrant |
4.41* |
|
Form of Pre-Funded
Warrant |
5.1* |
|
Opinion of Sullivan & Worcester LLP |
10.1 |
|
Summit Semiconductor, Inc. 2018 Long-Term Stock Incentive Plan (incorporated by reference to the Company's Registration Statement on Form S-1/A (File No. 333-224267) filed with the SEC on July 2, 2018). |
10.2 |
|
Form of
Restricted Stock Agreement for Directors under the Summit Semiconductor, Inc. 2018 Long-Term Stock Incentive Plan (incorporated
by reference to the Company's Registration Statement on Form S-8 (File No. 333-274154) filed with the SEC on August 22,
2023). |
10.3 |
|
Form of
Restricted Stock Agreement for Employees under the Summit Semiconductor, Inc. 2018 Long-Term Stock Incentive Plan (incorporated
by reference to the Company's Registration Statement on Form S-8 (File No. 333-274154) filed with the SEC on August 22,
2023). |
10.4 |
|
Form of
Indemnity Agreement by and between Summit Semiconductor, Inc., and each of its directors and executive officers (incorporated
by reference to the Company's Registration Statement on Form S-1/A (File No. 333-224267) filed with the SEC on July 2,
2018). |
10.5 |
|
Form of
Securities Purchase Agreement between Summit Semiconductor, LLC and the purchasers of Series D 15% Original Issue Discount Senior
Secured Convertible Promissory Notes (incorporated by reference to the Company’s Registration Statement on Form S-1/A
(File No. 333-224267) filed with the SEC on July 2, 2018). |
10.6 |
|
Form of
Amendment to Series D Transaction Documents (incorporated by reference to the Company’s Registration Statement on Form S-1/A
(File No. 333-224267) filed with the SEC on July 2, 2018). |
10.7 |
|
Form of
Securities Purchase Agreement by and among Summit Semiconductor, LLC and the purchasers of Series F Senior Secured 15% Convertible
Notes (incorporated by reference to the Company’s Registration Statement on Form S-1/A (File No. 333-224267) filed
with the SEC on July 2, 2018). |
10.8 |
|
Form of
Amendment to Series F Transaction Documents (incorporated by reference to the Company’s Registration Statement on Form S-1/A
(File No. 333-224267) filed with the SEC on July 23, 2018). |
10.9 |
|
Form of
Series G Subscription Agreement by and among Summit Semiconductor, Inc. and the purchasers of Series G 15% Original
Issue Discount Senior Secured Promissory Notes (incorporated by reference to the Company’s Registration Statement on Form S-1/A
(File No. 333-224267) filed with the SEC on July 2, 2018). |
10.10 |
|
Form of
Amendment to Series G Transaction Documents (incorporated by reference to the Company’s Registration Statement on Form S-1/A
(File No. 333-224267) filed with the SEC on July 2, 2018). |
10.11 |
|
Form of
Securities Purchase Agreement, dated April 18, 2019, by and among Summit Wireless Technologies, Inc. and certain purchasers
of Series A 8% Senior Convertible Preferred Stock (incorporated by reference to the Company’s Annual Report on Form 10-K
filed with the SEC on March 25, 2020). |
10.12 |
|
Form of
Series F Warrant Amendment and Exercise Agreement by and between the Company and each of the Medalist Funds (incorporated by
reference to the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 14, 2019). |
10.13 |
|
Form of
Series G Warrant Amendment and Exercise Agreement by and between the Company and each of the Medalist Funds (incorporated by
reference to the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 14, 2019). |
10.14 |
|
Form of
Warrant Amendment and Exercise Agreement by and between the Company and certain other holders of the Company’s Common Stock
purchase warrants (incorporated by reference to the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 14,
2019). |
10.15 |
|
Form of
Warrant Settlement Agreement by and between the Company and certain holders of the Company’s Common Stock purchase warrants
(incorporated by reference to the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 14, 2019). |
10.16 |
|
Form of
Warrant Settlement Agreement by and between the Company and the Medalist Funds (incorporated by reference to the Company’s
Quarterly Report on Form 10-Q filed with the SEC on November 14, 2019). |
10.17 |
|
Form of
Amended and Restated Offer Letter from Summit Wireless Technologies, Inc. to George Oliva, dated October 4, 2019 (incorporated
by reference to the Company’s Annual Report on Form 10-K filed with the SEC on March 25, 2020). |
10.18 |
|
Form of
Unit Purchase Agreement, dated February 4, 2020, by and among the Company and the purchaser signatory thereto (incorporated
by reference to the Company’s Current Report on Form 8-K filed with the SEC on March 3, 2020). |
10.19 |
|
Form of
Subscription Agreement, dated February 28, 2020, by and among the Company and the purchaser signatory thereto (incorporated
by reference to the Company’s Current Report on Form 8-K filed with the SEC on March 3, 2020). |
10.20 |
|
Form of
Securities Purchase Agreement, dated March 2020, by and between the Company and the investor (incorporated by reference to the
Company’s Current Report on Form 8-K filed with the SEC on March 26, 2020). |
10.21 |
|
Form of
Security Agreement, dated March 2020, by and between the Company and the investor (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on March 26, 2020). |
10.22 |
|
Form of
Security Agreement, dated March 2020, by and between WiSA and the Investor (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on March 26, 2020). |
10.23 |
|
Form of
Trademark Security Agreement, dated March 2020, by and between the Company and the investor (incorporated by reference to the
Company’s Current Report on Form 8-K filed with the SEC on March 26, 2020). |
10.24 |
|
Form of
Trademark Security Agreement, dated March 2020, by and between WiSA and the investor (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on March 26, 2020). |
10.25 |
|
Form of
Patent Security Agreement, dated March 2020, between the Company and the investor (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on March 26, 2020). |
10.26 |
|
Form of
Pledge Agreement, dated March 2020, between the Company, WiSA and the investor (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on March 26, 2020). |
10.27 |
|
Form of
Guaranty, dated March 2020 (incorporated by reference to the Company’s Current Report on Form 8-K filed with the
SEC on March 26, 2020). |
10.28 |
|
Paycheck
Protection Program Promissory Note and Agreement, dated May 3, 2020, by and between Wells Fargo Bank, National Association and
Summit Wireless Technologies, Inc. (incorporated by reference to the Company’s Current Report on Form 8-K filed with
the SEC on May 7, 2020). |
10.29 |
|
Leak-Out
Agreement, dated May 14, 2020, by and between the Company and Alexander Capital, L.P. (incorporated by reference to the Company’s
Quarterly Report on Form 10-Q filed with the SEC on May 27, 2020). |
10.30 |
|
Placement
Agency Agreement, dated June 4, 2020, by and between the Company and Maxim Group LLC (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on June 5, 2020). |
10.31 |
|
Form of
Securities Purchase Agreement, dated as of June 4, 2020, by and between the Company and the investors (incorporated by reference
to the Company’s Current Report on Form 8-K filed with the SEC on June 5, 2020). |
10.32 |
|
Placement
Agency Agreement, dated June 9, 2020, by and between the Company and Maxim Group LLC (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on June 10, 2020). |
10.33 |
|
Form of
Securities Purchase Agreement, dated as of June 9, 2020, by and between the Company and the investors (incorporated by reference
to the Company’s Current Report on Form 8-K filed with the SEC on June 10, 2020). |
10.34 |
|
Form of
Settlement and Release Agreement, dated November 9, 2020, by and among the Company and each holder (incorporated by reference
to the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 10, 2020). |
10.35 |
|
Form of
Registration Rights Agreement, dated November 9, 2020, by and among the Company and the holders (incorporated by reference to
the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 10, 2020). |
10.36 |
|
Form of
Leak-Out Agreement, dated November 9, 2020, by and between the Company and each holder (incorporated by reference to the Company’s
Quarterly Report on Form 10-Q filed with the SEC on November 10, 2020). |
10.37 |
|
Lease
Agreement by and between Portland 2 LLC and the Company, dated August 18, 2020 (incorporated by reference to the Company’s
Quarterly Report on Form 10-Q filed with the SEC on November 10, 2020). |
10.38 |
|
Summit
Wireless Technologies, Inc. 2020 Stock Incentive Plan (incorporated by reference to the Company’s Proxy Statement on Form DEF
14A filed with the SEC on September 11, 2020). |
10.39 |
|
Amendment
to WiSA Technologies, Inc. 2018 Long-Term Stock Incentive Plan (incorporated by reference to Appendix B to the Company’s
Definitive Proxy Statement on Schedule 14A, filed with the Commission on January 4, 2023). |
10.40 |
|
Form of
Inducement Agreement, dated January 18, 2021, by and between the Company and certain holders (incorporated by reference to the
Company’s Current Report on Form 8-K filed with the SEC on January 19, 2021). |
10.41 |
|
Solicitation
Agreement, dated January 15, 2021, by and between the Company and Maxim Group LLC (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on January 19, 2021). |
10.42 |
|
Form of
Inducement Agreement, dated January 19, 2021, by and between the Company and certain holders (incorporated by reference to the
Company’s Current Report on Form 8-K filed with the SEC on January 20, 2021). |
10.43 |
|
Form of
Exchange Agreement (incorporated by reference to the Company's Current Report on Form 8-K filed with the SEC on June 7,
2021). |
10.44 |
|
Form of
Inducement Agreement, dated as of June 7, 2021, by and between the Company and certain holders (incorporated by reference to
the Company's Current Report on Form 8-K filed with the SEC on June 8, 2021). |
10.45 |
|
Solicitation
Agreement, dated June 7, 2021, by and between the Company and Maxim Group LLC (incorporated by reference to the Company's Current
Report on Form 8-K filed with the SEC on June 8, 2021). |
10.46 |
|
Placement
Agency Agreement, dated as of July 22, 2021, by and between the Company and Maxim Group LLC (incorporated by reference to the
Company's Current Report on Form 8-K filed with the SEC on July 26, 2021). |
10.47 |
|
Form of
Securities Purchase Agreement, dated as of July 22, 2021, by and between the Company and the investors (incorporated by reference
to the Company's Current Report on Form 8-K filed with the SEC on July 26, 2021). |
10.48 |
|
Equity
Distribution Agreement, dated December 30, 2021, by and between the Company and Maxim Group LLC (incorporated by reference to
the Company's Current Report on Form 8-K filed with the SEC on December 30, 2021). |
10.49 |
|
Form of
Securities Purchase Agreement by and between the Company and the Investor (incorporated by reference to the Company's Current Report
on Form 8-K filed with the SEC on August 19, 2022). |
10.50 |
|
Form of
Security Agreement by and between the Company and the Investor (incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on August 19, 2022). |
10.51 |
|
Form of
Security Agreement by and between WiSA and the Investor (incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on August 19, 2022). |
10.52 |
|
Form of
Trademark Security Agreement by and between the Company and the Investor (incorporated by reference to the Company's Current Report
on Form 8-K filed with the SEC on August 19, 2022). |
10.53 |
|
Form of
Trademark Security Agreement by and between WiSA and the Investor (incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on August 19, 2022). |
10.54 |
|
Form of
Patent Security Agreement between the Company and the Investor (incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on August 19, 2022). |
10.55 |
|
Form of
Pledge Agreement between the Company, WiSA and the Investor (incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on August 19, 2022). |
10.56 |
|
Form of
Guaranty (incorporated by reference to the Company's Current Report on Form 8-K filed with the SEC on August 19, 2022). |
10.57+ |
|
Executive
Employment Agreement, effective as of August 24, 2022, by and between the Company and Brett Moyer (incorporated by reference
to the Company's Current Report on Form 8-K filed with the SEC on August 26, 2022). |
10.58+ |
|
Executive
Employment Agreement, effective as of August 24, 2022, by and between the Company and Gary Williams (incorporated by reference
to the Company's Current Report on Form 8-K filed with the SEC on August 26, 2022). |
10.59 |
|
WiSA
Technologies, Inc. Management Team Retention Bonus Plan, effective September 1, 2022 (incorporated by reference to the
Company's Current Report on Form 8-K filed with the SEC on September 1, 2022). |
10.60 |
|
Form of
Securities Purchase Agreement (incorporated by reference to the Company's Current Report on Form 8-K filed with the SEC on December 2,
2022). |
10.61 |
|
Form of
Warrant Agency Agreement (incorporated by reference to the Company's Current Report on Form 8-K filed with the SEC on December 2,
2022). |
10.62 |
|
Placement
Agency Agreement by and between the Company and the Placement Agent dated January 31, 2023 (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on February 3, 2023) |
10.63 |
|
Form of
Securities Purchase Agreement by and between the Company and the certain institutional investors dated January 31, 2023 (incorporated
by reference to the Company’s Current Report on Form 8-K filed with the SEC on February 3, 2023). |
10.64 |
|
Termination
Agreement by and between the Company and the Placement Agent dated as of January 30, 2023 (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on February 3, 2023). |
10.65 |
|
Form of
Securities Purchase Agreement by and between the Company and certain institutional investors dated March 27, 2023 (incorporated
by reference to the Company’s Current Report on Form 8-K filed with the SEC on March 29, 2023). |
10.66 |
|
Form of
Side Letter by and between the Company and certain institutional investors dated April 7, 2023 (incorporated by reference to
the Company’s Current Report on Form 8-K filed with the SEC on April 7, 2023). |
10.67 |
|
Form of
Securities Purchase Agreement by and between the Company and certain institutional investors dated April 7, 2023 (incorporated by
reference to the Company’s Current Report on Form 8-K filed with the SEC on April 7, 2023). |
10.68 |
|
Form of
Inducement Letter for March Warrants (incorporated by reference to the Company’s Current Report on Form 8-K filed with
the SEC on May 17, 2023). |
10.69 |
|
Form of
Inducement Letter for April Warrants (incorporated by reference to the Company’s Current Report on Form 8-K filed with
the SEC on May 17, 2023). |
10.70 |
|
Separation
Agreement, effective as of July 11, 2023, by and between the Company and George Oliva (incorporated by reference to the Company’s
Current Report on Form 8-K filed with the SEC on July 14, 2023) |
10.71 |
|
Form of
Inducement Letter for March Warrants (incorporated by reference to the Company’s Current Report on Form 8-K filed with
the SEC on August 1, 2023) |
10.72 |
|
Form of
Inducement Letter for May Warrants (incorporated by reference to the Company’s Current Report on Form 8-K filed with
the SEC on August 1, 2023) |
10.73 |
|
Form of
Waiver Agreement (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on September 1,
2023) |
10.74 |
|
Warrant
Agency Agreement, dated October 17, 2023, by and between WiSA Technologies, Inc., and VStock Transfer, LLC (incorporated by
reference to the Company’s Current Report on Form 8-K filed with the SEC on October 19, 2023) |
10.75 |
|
Placement
Agency Agreement, dated October 16, 2023, by and between WiSA Technologies, Inc. and Maxim Group LLC, as sole placement agent
(incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on October 19, 2023) |
10.76 |
|
Form of
Securities Purchase Agreement, dated October 16, 2023, by and between WiSA Technologies, Inc. and the purchasers signatory
thereto (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on October 19, 2023) |
10.77 |
|
Form of
Inducement Agreement by and between the Company and each Holder (incorporated by reference to the Company’s Current Report on Form 8-K
filed with the SEC on December 6, 2023) |
10.78 |
|
Form
of Securities Purchase Agreement, dated January 18, 2024 by and between WiSA Technologies, Inc. and the purchasers signatory thereto
(incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on January 23, 2024) |
10.79* |
|
Form of
Securities Purchase Agreement |
10.80* |
|
Form of
Warrant Agency Agreement |
10.81* |
|
Form of Voting Agreement |
10.82* |
|
Form of Side Letter Agreement, by and between WiSA Technologies,
Inc. and the signatories thereto |
10.83* |
|
Form of Warrant Amendment Agreement, by and between WiSA Technologies, Inc. and the signatories thereto |
23.1* |
|
Consent of BPM LLP, independent
registered public accounting firm |
23.2* |
|
Consent
of Sullivan & Worcester LLP (included in Exhibit 5.1) |
24.1** |
|
Power
of Attorney (included on the signature page) |
107 * |
|
Filing
Fee Table |
* |
Filed herewith. |
** |
Previously filed. |
+ |
Management compensatory agreement. |
Exhibit 1.1
PLACEMENT AGENCY AGREEMENT
[__], 2024
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, Oregon 97006
Dear Mr. Moyer:
This letter agreement (the “Agreement”)
constitutes the agreement between Maxim Group LLC (“Maxim” or the “Placement Agent”) and WiSA Technologies, Inc.,
a Delaware corporation (together with its subsidiaries, the “Company”), that Maxim shall serve as the exclusive placement
agent for the Company, on a “reasonable best efforts” basis, for the proposed placement to certain purchasers (the “Purchasers”)
of up to an aggregate of (i) [___] common units (each a “Common Unit”
and collectively, the “Common Units”), with each Common Unit consisting of (A) one share (each a “Share”
and collectively, the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), and (B) one common stock purchase warrant (the “Warrant”)
to purchase one share of Common Stock (the “Warrant Shares”), which are not exercisable
until after the Stockholder Approval Date (as defined in the Warrant) and expiring on the fifth (5th) anniversary of the date
on which Stockholder Approval is received and deemed effective under Delaware law, at an exercise price of $[__] per share of Common
Stock, and (ii) [____] pre-funded units (each a “Pre-Funded Unit” and collectively, the “Pre-Funded Units”),
with each Pre-Funded Unit consisting of (A) one pre-funded warrant (each a “Pre-Funded Warrant” and collectively,
the “Pre-Funded Warrants”), with each Pre-Funded Warrant exercisable to purchase one share of Common Stock (the “Pre-Funded
Warrant Shares”) at an exercise price of $0.001 per share, and (B) one Warrant. The Common Units, the Pre-Funded Units
and the securities included therein (i.e., the Shares, the Pre-Funded Warrants, the Pre-Funded Warrant Shares, the Warrants and the Warrant
Shares) are referred to herein as the “Securities.” The documents executed and delivered by the Company and the Purchasers
in connection with the Offering (as defined below), including, without limitation, a securities purchase agreement (the “Purchase
Agreement”), shall be collectively referred to herein as the “Transaction Documents.” The purchase price
to the Purchasers for each Common Unit is $[__] and the purchase price to the Purchasers for each Pre-Funded Unit is $[__]. The Placement
Agent may retain other brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection with the Offering.
Notwithstanding anything herein
to the contrary, in the event that the Placement Agent determines that any of the terms provided for hereunder do not comply with a rule of
the Financial Industry Regulatory Authority (“FINRA”), including but not limited to FINRA Rule 5110, then the
Company shall agree to amend this Agreement in writing upon the request of the Placement Agent to comply with any such rules; provided
that any such amendments shall not provide for terms that are less favorable to the Company than the terms of this Agreement.
Section 1.
Agreement to Act as Placement Agent.
(a) On
the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions
of this Agreement, the Placement Agent shall be the exclusive placement agent in connection with the offering and sale by the Company
of the Securities pursuant to the Company’s registration statement on Form S-1 (File No. 333-276631) (and including any
registration statement prepared and filed by the Company in accordance with Rule 462(b) pursuant to the Securities Act) (the
“Registration Statement”), with the terms of such offering (the “Offering”) to be subject to market
conditions and negotiations between the Company, the Placement Agent and the prospective Purchasers. The Placement Agent will act on a
reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities,
or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates”
(as defined below) be obligated to underwrite or purchase any of the Securities for its own account or otherwise provide any financing.
The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to
bind the Company with respect to any prospective offer to purchase the Securities and the Company shall have the sole right to accept
offers to purchase the Securities and may reject any such offer, in whole or in part. Subject to the terms and conditions hereof, payment
of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a “Closing”
and the date on which each Closing occurs, a “Closing Date”). The Closing shall occur via “Delivery Versus Payment”
(“DVP”), i.e., on the Closing Date, the Company shall issue the Shares directly to the account designated by the Placement
Agent and, upon receipt of such Shares, the Placement Agent shall electronically deliver such Shares to the applicable Purchaser and payment
shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company, and delivery of the Pre-Funded Warrants
and the Warrants shall be delivered via The Depository Trust Company Deposit or Withdrawal at Custodian system for the account of the
applicable Purchaser as set forth in the Purchase Agreement. As compensation for services rendered, the Company shall pay to the Placement
Agent the fees and expenses set forth below:
|
(i) |
a cash fee equal to 7.0% of the gross proceeds received by the Company from the sale of the Securities at the applicable Closing; and |
|
(ii) |
reimbursement of the Placement Agent’s accountable expenses, including the Placement Agent’s legal counsel’s legal fees, up to $75,000. |
The Placement Agent reserves
the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be
made by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of FINRA Rules or that the terms
thereof require adjustment.
(b) The
Placement Agent’s engagement hereunder shall become effective on the date hereof and shall continue until the later of (i) the
final closing date of the Offering and (ii) June 30, 2024; provided, however, that a party hereto may
terminate the engagement with respect to itself at any time upon 10 days written notice to the other parties, provided that such early
termination right shall only apply during the period after the Registration Statement has been approved by the Securities and Exchange
Commission (the “Termination Date”). Notwithstanding anything to the contrary contained herein, the provisions concerning
confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification
provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned
and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which
are permitted to be reimbursed under the FINRA Rules, will survive any expiration or termination of this Agreement. All such fees and
reimbursements due shall be paid to the Placement Agent on or before the Termination Date (in the event such fees and reimbursements are
earned or owed as of the Termination Date) or upon the closing of the Offering or any applicable portion thereof (in the event such fees
are due pursuant to the terms of Section 1 hereof).
(c) Nothing
in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest
in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than
the Company. As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other
entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under
the Securities Act of 1933, as amended (the “Securities Act”).
Section 2.
Representations, Warranties and Covenants of the Company. The Company hereby represents, warrants and covenants to the Placement
Agent as of the date hereof, and as of each Closing Date, unless such representation, warranty or agreement specifies a different date
or time, as follows:
(a) Securities
Law Filings. The Company has filed with the Securities and Exchange Commission (the “Commission”) the Registration
Statement under the Securities Act, which was filed on January 19, 2024, as amended, and declared effective on [______], 2024 for
the registration of the Securities under the Securities Act. Following the determination of pricing among the Company and the prospective
Purchasers introduced to the Company by Placement Agent, the Company will file with the Commission pursuant to Rules 430A and 424(b) under
the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated
thereunder, a final prospectus relating to the placement of the Securities, their respective pricings and the plan of distribution thereof
and will advise the Placement Agent of all further information (financial and other) with respect to the Company required to be set forth
therein. Such registration statement, at any given time, including the exhibits thereto filed at such time, as amended at such time, is
hereinafter called the “Registration Statement”; such prospectus in the form in which it appears in the Registration
Statement at the time of effectiveness, is hereinafter called the “Preliminary Prospectus”; and the final prospectus,
in the form in which it will be filed with the Commission pursuant to Rules 430A and/or 424(b) (including the Preliminary Prospectus
as it may be amended or supplemented) is hereinafter called the “Final Prospectus.” The Registration Statement at the
time it originally became effective is hereinafter called the “Original Registration Statement.” Any reference in this
Agreement to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated Documents”), if
any, which were or are filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), at any given
time, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, the Original Registration Statement, the Preliminary Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date
of the Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. All references
in this Agreement to financial statements and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration Statement, the
Preliminary Prospectus or the Final Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement,
the Preliminary Prospectus or the Final Prospectus, as the case may be. As used in this paragraph and elsewhere in this Agreement, “Time
of Sale Disclosure Package” means the Preliminary Prospectus, the Transaction Documents, the final terms of the Offering provided
to the Purchasers (orally or in writing), and any issuer free writing prospectus as defined in Rule 433 of the Act (each, an “Issuer
Free Writing Prospectus”), if any, that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Time of Sale Disclosure Package. The term “any Prospectus” shall mean, as the context requires, the Preliminary Prospectus,
the Final Prospectus and any supplement to either thereof. The Company has not received any notice that the Commission has issued or intends
to issue a stop order suspending the effectiveness of the Registration Statement or the use of the Preliminary Prospectus or the Final
Prospectus or intends to commence a proceeding for any such purpose.
(b) Assurances.
The Original Registration Statement, as amended, (and any further documents to be filed with the Commission) contains all exhibits and
schedules as required by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time
it became effective, complied in all material respects with the Securities Act and the applicable Rules and Regulations and did not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Final Prospectus, as of its date, complied or will comply in all material respects with the Securities
Act and the applicable Rules and Regulations. The Final Prospectus, as amended or supplemented, did not and will not contain as of
the date thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations promulgated thereunder,
and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference in the
Final Prospectus), in light of the circumstances under which they were made not misleading. No post-effective amendment to the Registration
Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental
change in the information set forth therein is required to be filed with the Commission. Except for this Agreement and the Transaction
Documents, there are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that
(i) have not been filed as required pursuant to the Securities Act or (ii) will not be filed within the requisite time period
under the Rules and Regulations. Except for this Agreement and the Transaction Documents, there are no contracts or other documents
required to be described in the Final Prospectus, or to be filed as exhibits or schedules to the Registration Statement, which have not
been described or filed as required. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Placement Agent specifically for use in the preparation thereof.
(c) Offering
Materials. Neither the Company nor any of its directors and officers has distributed and none of them will distribute, prior to each
Closing Date, any offering material in connection with the offering and sale of the Securities other than the Time of Sale Disclosure
Package.
(d) Authorization;
Enforcement. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute
the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.
(e) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the Transaction Documents and the transactions
contemplated pursuant to the Time of Sale Disclosure Package, the issuance and sale of the Securities and the consummation by it of the
transactions contemplated hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision
of the Company’s, or any of its subsidiaries’, certificate or articles of incorporation, bylaws or other organizational or
charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become
a default) under, result in the creation of any lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction upon any of the properties or assets of the Company, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a debt or otherwise) or other understanding to which the Company is a party or by which any property or asset of the Company
is bound or affected, or (iii) subject to any required approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any property or asset of the Company is bound or affected; except in the
case of each of clauses (ii) and (iii), such as would not reasonably be expected to result in a material adverse effect on: (x) the
legality, validity or enforceability of any Transaction Document; (y) the results of operations, assets, business, prospects or condition
(financial or otherwise) of the Company; or (z) the Company’s ability to perform in any material respect on a timely basis
its obligations under any Transaction Document (any of (x), (y), or (z), a “Material Adverse Effect”).
(f) Reliance.
The Company has not relied upon the Placement Agent or legal counsel for the Placement Agent for any legal, tax or accounting advice in
connection with the offering and sale of the Securities.
(g) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act (“Forward-Looking Statement”) contained in the Time of Sale Disclosure Package has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith. The Forward-Looking Statements incorporated by reference in
the Registration Statement and the Prospectus (i) are within the coverage of the safe harbor for Forward Looking Statements set forth
in Section 27A of the Securities Act, Rule 175(b) under the Securities Act or Rule 3b-6 under the Exchange Act, as
applicable, (ii) were made by the Company with a reasonable basis and in good faith and reflect the Company’s good faith commercially
reasonable best estimate of the matters described therein, and (iii) have been prepared in accordance with Item 10 of Regulation
S-K under the Securities Act.
(h) Representations
and Warranties Incorporated by Reference. Each of the representations and warranties (together with any related disclosure schedules
thereto) made by the Company to the Purchasers in the Purchase Agreement is hereby incorporated herein by reference (as though fully restated
herein) and is hereby made to, and in favor of, the Placement Agent.
(i) FINRA
Affiliations. There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the knowledge
of the Company, any 5.0% or greater stockholder of the Company.
Section 3.
Delivery and Payment. Each Closing shall occur at the offices of Blank Rome LLP, located at 1271 Avenue of the Americas, New
York, New York 10020 (“Placement Agent Counsel”) (or at such other place as shall be agreed upon by the Placement Agent
and the Company, including remotely via electronic transmission). Subject to the terms and conditions hereof and of the Purchase Agreement,
at each Closing, payment of the purchase price for the Securities sold on such Closing Date shall be made by Federal Funds wire transfer,
against delivery of such Securities, and such Securities shall be registered in such name or names and shall be in such denominations,
as the Placement Agent may request at least one business day before the Closing Date. Deliveries of the documents with respect to the
purchase of the Securities, if any, shall be made at the offices of Placement Agent Counsel. All actions taken at a Closing shall be deemed
to have occurred simultaneously.
Section 4.
Covenants and Agreements of the Company. The Company further covenants and agrees with the Placement Agent as follows:
(a) Registration
Statement Matters. The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment
to the Registration Statement has been filed or becomes effective or any supplement to the Final Prospectus has been filed and will furnish
the Placement Agent with copies thereof. The Company will file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent
to the date of any Prospectus and for so long as the delivery of a prospectus is required in connection with the Offering. The Company
will advise the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration
Statement or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at
any Incorporated Document, if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Preliminary
Prospectus or the Final Prospectus or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment
to the Registration Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the
institution or threatened institution of any proceeding for any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent
the issuance of any such stop order or prevention or suspension of such use. If the Commission shall enter any such stop order or order
or notice of prevention or suspension at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest
possible moment, or will file a new registration statement and use its best efforts to have such new registration statement declared effective
as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and
430C, as applicable, under the Securities Act, including with respect to the timely filing of documents thereunder, and will use its reasonable
efforts to confirm that any filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
(b) Blue
Sky Compliance. The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for
sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably
request and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required
to produce any new disclosure document. The Company will, from time to time, prepare and file such statements, reports and other documents
as are or may be required to continue such qualifications in effect for so long a period as the Placement Agent may reasonably request
for distribution of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration
of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of
any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption,
the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(c) Amendments
and Supplements to a Prospectus and Other Matters. The Company will comply with the Securities Act and the Exchange Act, and the rules and
regulations of the Commission thereunder, so as to permit the completion of the distribution of the Securities as contemplated in this
Agreement, the Incorporated Documents and any Prospectus. If during the period in which a prospectus is required by law to be delivered
in connection with the distribution of Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus
Delivery Period”), any event shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement
Agent or counsel for the Placement Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in
order to make the statements therein, in light of the circumstances under which they were made, as the case may be, not misleading, or
if it is necessary at any time to amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any
Incorporated Document to comply with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense
to the Placement Agent and to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement,
the Incorporated Documents or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus
as so amended or supplemented, in light of the circumstances under which they were made, as the case may be, not misleading, or so that
the Registration Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before
amending the Registration Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Offering, the
Company will furnish the Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or
supplement to which the Placement Agent reasonably objects.
(d) Copies
of any Amendments and Supplements to a Prospectus. The Company will furnish the Placement Agent, without charge, during the period
beginning on the date hereof and ending on the later of the last Closing Date of the Offering, as many copies of any Prospectus or prospectus
supplement and any amendments and supplements thereto, as the Placement Agent may reasonably request.
(e) Free
Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement Agent, make
any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission
or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent expressly consents in writing
to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company covenants that it shall (i) treat
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) comply with the requirements of Rule 164
and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
(f) Transfer
Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Common Stock for at least three years after
the final Closing Date.
(g) Earnings
Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but in any event not later
than 18 months after the last Closing Date, the Company will make generally available to its security holders and to the Placement Agent
an earnings statement, covering a period of at least 12 consecutive months beginning after the last Closing Date, that satisfies the provisions
of Section 11(a) and Rule 158 under the Securities Act.
(h) Periodic
Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and
the market or exchange on which the Common Stock is listed or quoted for trading (the “Trading Market”) all reports
and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
(i) Additional
Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement Agent
or the Purchasers deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably acceptable
to the Placement Agent and the Purchasers. The Company agrees that the Placement Agent may rely upon, and each is a third party beneficiary
of, the representations and warranties, and applicable covenants, set forth in any such purchase, subscription or other agreement with
Purchasers in the Offering.
(j) No
Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or
that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of
the Company.
(k) Acknowledgment.
The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit and use of the Board of
Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior
written consent.
(l) Publicity.
The Company acknowledges and agrees that the Placement Agent may, subsequent to the Closing, make public its involvement with the Offering.
The Company agrees that, until 45 days after the final Closing Date, it will not issue press releases or engage in any other publicity,
without Maxim’s prior written consent (not to be unreasonably withheld), other than normal and customary releases issued in the
ordinary course of the Company’s business. Notwithstanding the foregoing, in no event shall the Company be prohibited from issuing
any press releases or engaging in any other publicity required by law, except that including the name of the Placement Agent therein shall
require the prior written consent of the Placement Agent.
(m) Reliance
on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.
(n) Research
Matters. By entering into this Agreement, the Placement Agent does not provide any promise, either explicitly or implicitly, of favorable
or continued research coverage of the Company and the Company hereby acknowledges and agrees that the Placement Agent’s selection
as a placement agent for the Offering was in no way conditioned, explicitly or implicitly, on the Placement Agent providing favorable
or any research coverage of the Company. In accordance with the FINRA Rules, the parties acknowledge and agree that the Placement Agent
has not directly or indirectly offered favorable research, a specific rating or a specific price target, or threatened to change research,
a rating or a price target, to the Company or inducement for the receipt of business or compensation.
(o) Trading
Market. The Company will use its best efforts to maintain the listing of its Common Stock on the Trading Market for a period of at
least three years after the final Closing Date.
(p) Engagement
of Professionals. The Company will retain a nationally recognized, PCAOB registered firm of independent certified public accountants
reasonably acceptable to Maxim for a period of at least three years after the final Closing Date. The Company will retain a financial
public relations firm reasonably acceptable to Maxim for a period of two years after the final Closing Date. The Company will retain a
financial printer reasonably acceptable to Maxim to handle the printing and related aspects of the Offering.
(q) Subsequent
Equity Sales. From the date hereof until sixty (60) days after the Closing Date, neither the Company nor any Subsidiary shall (i)
issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock
Equivalents or (ii) file any registration statement or amendment or supplement thereto, other than the Prospectus or filing a registration
statement on Form S-8 in connection with any employee benefit plan. Notwithstanding the foregoing, this Section 4(q) shall not apply
in respect of an Exempt Issuance. As used herein, an “Exempt Issuance” means the issuance of (a) shares of Common
Stock, options, restricted stock units or other equity-based awards to employees, officers or directors of the Company or its subsidiaries
pursuant to any compensation plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors
or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company,
(b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable
or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such
securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise
price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend
the term of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions (including, without limitation,
joint venture, co-marketing, co-development or other collaboration agreements) approved by a majority of the disinterested directors
of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no
registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition period set forth above, and provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which
is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the
Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction
in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing
in securities.
Section 5.
Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall be subject to
the accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof, in
each case as of the date hereof and as of each Closing Date as though then made, to the timely performance by each of the Company of its
covenants and other obligations hereunder on and as of such dates, and to each of the following additional conditions:
(a) Accountants’
Comfort Letter. On the date of execution of this Agreement (the “Initial Closing”), the Placement Agent shall
have received, and the Company shall have caused to be delivered to the Placement Agent, a cold “comfort letter” from BPM
LLP, the current independent registered public accounting firm of the Company (“BPM”), addressed to the Placement
Agent, dated as of the Initial Closing, in form and substance satisfactory to the Placement Agent and a bring down comfort letter on
the Closing Date. The letter shall not disclose any change in the condition (financial or other), earnings, operations, business or prospects
of the Company from that set forth in the Incorporated Documents or the applicable Prospectus or prospectus supplement, which, in the
Placement Agent’s sole judgment, is material and adverse and that makes it, in the Placement Agent’s sole judgment, impracticable
or inadvisable to proceed with the Offering of the Securities as contemplated by such Prospectus.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from the FINRA. Each Prospectus shall have been duly filed with the Commission,
as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by the Commission; no order preventing or suspending the use of
any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no
order having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company shall have
been issued by any securities commission, securities regulatory authority or stock exchange and no proceedings for that purpose shall
have been instituted or shall be pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange; all requests for additional information on the part of the Commission shall have been complied with; and,
prior to the Initial Closing, FINRA shall have raised no objection to the fairness and reasonableness of the placement terms and arrangements.
(c) Corporate
Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement and
each Prospectus, and the registration, sale and delivery of the Securities, shall have been completed or resolved in a manner reasonably
satisfactory to the Placement Agent’s counsel, and such counsel shall have been furnished with such papers and information as it
may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 5.
(d) No
Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, in the Placement
Agent’s sole judgment after consultation with the Company, there shall not have occurred any Material Adverse Effect or any material
adverse change or development involving a prospective material adverse change in the condition or the business activities, financial or
otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus (“Material
Adverse Change”).
(e) Opinion
of Counsel for the Company. The Placement Agent shall have received on each Closing Date the favorable opinion of Sullivan &
Worcester LLP, legal counsel to the Company, dated as of such Closing Date, including, without limitation, a negative assurance letter
addressed to the Placement Agent and in form and substance satisfactory to the Placement Agent.
(f) Officers’
Certificate. The Placement Agent shall have received on each Closing Date a certificate of the Company, dated as of such Closing Date,
signed by the Chief Executive Officer and Chief Financial Officer of the Company, to the effect that, and the Placement Agent shall be
satisfied that, the signers of such certificate have reviewed the Registration Statement, the Incorporated Documents, the Final Prospectus,
the Transaction Documents and this Agreement and to the further effect that:
(j) The
representations and warranties of the Company in this Agreement are true and correct, as if made on and as of such Closing Date, and the
Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to
such Closing Date;
(ii) No
stop order suspending the effectiveness of the Registration Statement or the use of the Final Prospectus has been issued and no proceedings
for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened under the Securities Act; no order
having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company has been issued by
any securities commission, securities regulatory authority or stock exchange in the United States and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange in the United States;
(iii) When
the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such certificate,
the Registration Statement and the Incorporated Documents, if any, when such documents became effective or were filed with the Commission,
and any Prospectus, contained all material information required to be included therein by the Securities Act and the Exchange Act and
the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects conformed to
the requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder,
as the case may be, and the Registration Statement and the Incorporated Documents, if any, and any Prospectus, did not and do not include
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations
and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Placement Agent expressly for use therein) and, since the effective date of
the Registration Statement, there has occurred no event required by the Securities Act and the rules and regulations of the Commission
thereunder to be set forth in the Incorporated Documents which has not been so set forth; and
(iv) Subsequent
to the respective dates as of which information is given in the Registration Statement, the Incorporated Documents and the Final Prospectus,
there has not been: (a) any Material Adverse Change; (b) any transaction that is material to the Company taken as a whole,
except transactions entered into in the ordinary course of business; (c) any obligation, direct or contingent, that is material
to the Company taken as a whole, incurred by the Company, except obligations incurred in the ordinary course of business; (d) any
material change in the capital stock (except changes thereto resulting from the exercise of outstanding stock options or warrants) or
outstanding indebtedness of the Company; (e) any dividend or distribution of any kind declared, paid or made on the capital stock
of the Company; or (f) any loss or damage (whether or not insured) to the property of the Company which has been sustained or will
have been sustained which has a Material Adverse Effect.
(g) [RESERVED].
(h) Stock
Exchange Listing. The Common Stock shall be registered under the Exchange Act and shall be listed on the Trading Market, and the Company
shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration of the Common Stock
under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market, nor shall the Company have received
any information suggesting that the Commission or the Trading Market is contemplating terminating such registration or listing except
as disclosed in any Prospectus.
(i) Lock-Up
Agreements. At the Initial Closing, the Placement Agent shall have received the executed lock-up agreement, in the form attached hereto
as Exhibit A, from each of the directors, officers, and any holder of 10% or more of the outstanding Common Stock.
(j) Warrant
Agency Agreement. At the Initial Closing, the Company shall have executed and delivered the duly executed one or more warrant agency
agreements by and between the Company and the transfer agent, acting as warrant agent.
(k) Warrants
and Pre-Funded Warrants. On each Closing Date, the Company shall deliver or shall cause to be delivered the Pre-Funded Warrants and
the Warrants registered in such name or names and in such denominations as the Placement Agent may request at least one business day before
the applicable Closing Date.
(l) Additional
Documents. On or before each Closing Date, the Placement Agent and counsel for the Placement Agent shall have received such information
and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as
contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of
the conditions or agreements, herein contained.
If any condition specified
in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the
Placement Agent by notice to the Company at any time on or prior to a Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Sections 1(a), 7 and 8 shall at all times
be effective and shall survive such termination.
Section 6. Further
Agreements.
(a) Other
Activities. The Company acknowledges that the Placement Agent has been, and may in the future be, engaged to provide services as an
underwriter, placement agent, finder, advisor or investment banker to other companies in the industry in which the Company is involved.
The Company acknowledges and agrees that nothing contained in this Agreement shall limit or restrict the right of the Placement Agent
or of any member, manager, officer, employee, agent or representative of the Placement Agent, to be a member, manager, partner, officer,
director, employee, agent or representative of, investor in, or to engage in, any other business, whether or not of a similar nature to
the Company’s business, nor to limit or restrict the right of the Placement Agent to render services of any kind to any other corporation,
firm, individual or association; provided that the Placement Agent and any of its members, managers, officers, employees, agents or representatives
shall not use the Information to the detriment of the Company.
(b) Placement
Agent Introductions. For a period of 12 months from the final Closing Date, the Company will pay the Placement Agent a cash fee equal
to 7.0% of the gross proceeds of any equity, equity-linked, or debt financing, or any other capital raising activity received by the Company
from investors introduced to the Company by the Placement Agent.
(c) Right
of First Refusal. For a period of twelve (12) months from the Closing Date, the Company grants the Placement Agent the right
of first refusal to act as sole managing underwriter and sole book runner, sole placement agent, or sole sales agent, for any and all
future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings for which the Company retains the service
of an underwriter, agent, advisor, finder or other person or entity in connection with such offering during such twelve (12) month period
of the Company, or any successor to or any subsidiary of the Company. The Company shall not offer to retain any entity or person in connection
with any such offering on terms more favorable than terms on which it offers to retain the Placement Agent. Such offer shall be made in
writing in order to be effective. The Placement Agent shall notify the Company within ten (10) business days of its receipt of the
written offer contemplated above as to whether or not it agrees to accept such retention. If the Placement Agent should decline such retention,
the Company shall have no further obligations to the Placement Agent with respect to the offering for which it has offered to retain the
Placement Agent, except as otherwise provided for herein. Such right of first refusal shall not have a duration of more than three (3) years
from commencement of sales.
Section 7.
Indemnification and Contribution.
(a) The
Company agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling the Placement Agent (within
the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agent, its affiliates
and each such controlling person (the Placement Agent, and each such entity or person. an “Indemnified Person”) from
and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of one counsel for all
Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”) as they are incurred
by an Indemnified Person in investigating, preparing, pursuing or defending any action, suit, inquiry, notice of violation, proceeding
or investigation (collectively, an “Action”), whether or not any Indemnified Person is a party thereto, (i) caused by,
or arising out of or in connection with, any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, any Incorporated Document, or any Prospectus or by any omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances under which they were made, not misleading (other than untrue statements
or alleged untrue statements in, or omissions or alleged omissions from, information relating to an Indemnified Person furnished in writing
by or on behalf of such Indemnified Person expressly for use in the Incorporated Documents) or (ii) otherwise arising out of or in
connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement, the transactions contemplated
thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services or transactions; provided, however,
that, in the case of clause (ii) only, the Company shall not be responsible for any Liabilities or Expenses of any Indemnified Person
that are finally judicially determined to have resulted solely from such Indemnified Person’s (x) gross negligence or willful
misconduct in connection with any of the advice, actions, inactions or services referred to above or (y) use of any offering materials
or information concerning the Company in connection with the offer or sale of the Securities in the Offering which were not authorized
for such use by the Company and which use constitutes gross negligence or willful misconduct. The Company also agrees to reimburse each
Indemnified Person for all Expenses as they are incurred in connection with enforcing such Indemnified Person’s rights under this
Agreement.
(b) Upon
receipt by an Indemnified Person of actual notice of an Action against such Indemnified Person with respect to which indemnity may be
sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified
Person so to notify the Company shall not relieve the Company from any liability which the Company may have on account of this indemnity
or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced by such failure. The Company shall,
if requested by the Placement Agent, assume the defense of any such Action including the employment of counsel reasonably satisfactory
to the Placement Agent, which counsel may also be counsel to the Company. Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel or (ii) the
named parties to any such Action (including any impeded parties) include such Indemnified Person and the Company, and such Indemnified
Person shall have been advised in the reasonable opinion of counsel that there is an actual conflict of interest that prevents the counsel
selected by the Company from representing both the Company (or another client of such counsel) and any Indemnified Person; provided that
the Company shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel for
all Indemnified Persons in connection with any Action or related Actions, in addition to any local counsel. The Company shall not be
liable for any settlement of any Action effected without its written consent (which shall not be unreasonably withheld). In addition,
the Company shall not, without the prior written consent of the Placement Agent (which shall not be unreasonably withheld), settle, compromise
or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened Action in respect of which indemnification
or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified Person from all Liabilities arising out of such Action for
which indemnification or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments
of the amount thereof during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is
due and payable.
(c) In
the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Company
shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate to reflect
(i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person, on the other
hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause is not
permitted by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement
Agent and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate,
as well as any other relevant equitable considerations; provided that in no event shall the Company contribute less than the amount necessary
to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in excess of the amount of fees
actually received by the Placement Agent pursuant to this Agreement. For purposes of this paragraph, the relative benefits to the Company,
on the one hand, and to the Placement Agent on the other hand, of the matters contemplated by this Agreement shall be deemed to be in
the same proportion as (a) the total value paid or contemplated to be paid to or received or contemplated to be received by the Company
in the transaction or transactions that are within the scope of this Agreement, whether or not any such transaction is consummated, bears
to (b) the fees paid to the Placement Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was
not guilty of fraudulent misrepresentation.
(d) The
Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise)
to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement,
the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services
or transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted solely
from such Indemnified Person’s gross negligence or willful misconduct in connection with any such advice, actions, inactions or
services.
(e) The
reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement
and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person’s services
under or in connection with, this Agreement.
Section 8.
Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and
other statements of the Company or any person controlling the Company, of its officers, and of the Placement Agent set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement
Agent, the Company, or any of its or their partners, officers or directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Securities sold hereunder and any termination of this Agreement. A successor to a Placement Agent, or
to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Agreement.
Section 9.
Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered, e-mailed or telecopied and confirmed
to the parties hereto as follows:
If to the Placement Agent: |
|
Maxim Group LLC |
300 Park Avenue, 16th Floor |
New York, NY 10022 |
Attention: Clifford A. Teller, Co-President |
Email: ecteller@maximgrp.com |
With a copy to: |
|
Blank Rome LLP |
1271 Avenue of the Americas |
New York, New York 10020 |
Attention: Leslie Marlow, Esq. or Patrick J. Egan, Esq. |
Email: leslie.marlow@blankrome.com or patrick.egan@blankrome.com |
|
If to the Company: |
|
WiSA Technologies, Inc. |
15268 NW Greenbrier Pkwy |
Beaverton, Oregon 97006 |
Attention: Brett Moyer |
Email: bmoyer@wisatechnologies.com |
|
With a copy to: |
|
Sullivan & Worcester LLP |
1633 Broadway |
New York, New York 10019 |
Attention: David E. Danovitch, Esq. |
Email: ddanovitch@sullivanlaw.com |
Any party hereto may change
the address for receipt of communications by giving written notice to the others.
Section 10.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees,
officers and directors and controlling persons referred to in Section 7 hereof, and to their respective successors,
and personal representative, and no other person will have any right or obligation hereunder.
Section 11.
Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
Section 12.
Governing Law Provisions. This Agreement shall be deemed to have been made and delivered in New York City and both this Agreement
and the transactions contemplated hereby shall be governed as to validity, interpretation, construction, effect and in all other respects
by the internal laws of the State of New York, without regard to the conflict of laws principles thereof. Each of the Placement Agent
and the Company: (i) agrees that any legal suit, action or proceeding arising out of or relating to this Agreement and/or the transactions
contemplated hereby shall be instituted exclusively in the New York Supreme Court, County of New York, or in the United States District
Court for the Southern District of New York (ii) waives any objection which it may have or hereafter to the venue of any such suit,
action or proceeding, and (iii) irrevocably consents to the jurisdiction of the New York Supreme Court, County of New York, or in
the United States District Court for the Southern District of New York in any such suit, action or proceeding. Each of the Placement
Agent and the Company further agrees to accept and acknowledge service of any and all process which may be served in any such suit, action
or proceeding in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of
New York and agrees that service of process upon the Company mailed by certified mail to the Company’s address shall be deemed
in every respect effective service of process upon the Company, in any such suit, action or proceeding, and service of process upon the
Placement Agent mailed by certified mail to the Placement Agent’s address shall be deemed in every respect effective service process
upon the Placement Agent, in any such suit, action or proceeding. Notwithstanding any provision of this Agreement to the contrary, the
Company agrees that neither the Placement Agent nor its affiliates, and the respective officers, directors, employees, agents and representatives
of the Placement Agent, its affiliates and each other person, if any, controlling the Placement Agent or any of its affiliates, shall
have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with the engagement
and transaction described herein except for any such liability for losses, claims, damages or liabilities incurred by us that are finally
judicially determined to have resulted from the willful misconduct or gross negligence of such individuals or entities. If either party
shall commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
Section 13.
General Provisions.
(a) This
Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express
or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. Section headings herein
are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
(b) The
Company acknowledges that in connection with the offering of the Securities: (i) the Placement Agent has acted at arm’s length,
are not agents of, and owe no fiduciary duties to the Company or any other person, (ii) the Placement Agent owes the Company only
those duties and obligations set forth in this Agreement and (iii) the Placement Agent may have interests that differ from those
of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Placement Agent arising
from an alleged breach of fiduciary duty in connection with the offering of the Securities.
[The remainder of this page has been intentionally
left blank.]
If the foregoing is in accordance
with your understanding of our agreement, please sign below whereupon this instrument, along with all counterparts hereof, shall become
a binding agreement in accordance with its terms.
|
Very truly yours, |
|
|
|
MAXIM GROUP LLC |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
The foregoing Agreement is
hereby confirmed and accepted as of the date first written above.
WISA TECHNOLOGIES, INC. |
|
|
|
By: |
|
|
|
Name: Brett Moyer |
|
|
Title: Chief Executive Officer |
|
[Signature Page to Placement Agency Agreement]
Exhibit A
Form of Lock-Up Agreement
Lock-Up Agreement
_________, 2024
Maxim Group LLC
300 Park Avenue, 16th Floor
New York, New York 10022
Re: WiSA Technologies, Inc.—Proposed
Offering of Securities
Ladies and Gentlemen:
The undersigned, a holder
of common stock, par value $0.0001 per share (“Shares”), or rights to acquire Shares, of WiSA Technologies, Inc.,
a company incorporated under the laws of the State of Delaware (the “Company”), understands that you (“Maxim”)
propose to enter into a Placement Agency Agreement (the “Placement Agency Agreement”) providing for the offer and sale
(the “Offering”) of certain securities of the Company, including units comprised of shares of the Company’s common
stock, par value $0.0001 per share (the “Common Stock”) and warrants to purchase shares of Common Stock and pre-funded
units comprised of pre-funded warrants to purchase shares of Common Stock and warrants to purchase shares of Common Stock (the “Securities”)
pursuant to a registration statement on Form S-1, as amended (File No. 333-276631), filed with the U.S. Securities and Exchange
Commission (the “SEC”). The Securities are being directly issued by the Company pursuant to the terms of that certain
Securities Purchase Agreement (the “Purchase Agreement”) between the Company and the purchasers signatory thereto (each,
a “Purchaser” and, collectively, the “Purchasers”). Capitalized terms used herein and not otherwise
defined shall have the meanings set forth for them in the Placement Agency Agreement.
In consideration of Maxim’s
agreement to enter into the Placement Agency Agreement and to proceed with the Offering of the Securities, and the Purchasers’ agreement
to enter into the Purchase Agreement and proceed with the purchase of the Securities, and for other good and valuable consideration, receipt
of which is hereby acknowledged, the undersigned hereby agrees, for the benefit of the Company, Maxim and the Purchasers that, without
the prior written consent of Maxim, the undersigned will not, during the period specified in the following paragraph (the “Lock-Up
Period”), directly or indirectly, unless otherwise provided herein, (a) offer, sell, agree to offer or sell, solicit offers
to purchase, convert, exercise, exchange, grant any call option or purchase any put option with respect to, pledge, encumber, assign,
borrow or otherwise dispose of or transfer (each a “Transfer”) any Relevant Security (as defined below) or otherwise
publicly disclose the intention to do so, or (b) establish or increase any “put equivalent position” or liquidate or
decrease any “call equivalent position” with respect to any Relevant Security (in each case within the meaning of Section 16
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder)
with respect to any Relevant Security or otherwise enter into any swap, derivative or other transaction or arrangement that Transfers
to another, in whole or in part, any economic consequence of ownership of a Relevant Security, whether or not such transaction is to be
settled by the delivery of Relevant Securities, other securities, cash or other consideration, or otherwise publicly disclose the intention
to do so. As used herein, the term “Relevant Security” means any Share, warrant to purchase Shares or any other security
of the Company or any other entity that is convertible into, or exercisable or exchangeable for, Shares or any other equity security of
the Company, in each case owned beneficially or otherwise by the undersigned as of the date of the Placement Agency Agreement or acquired
by the undersigned during the Lock-Up Period.
The restrictions in the foregoing
paragraph shall not apply to the transfer, sale or other disposition of any shares of Common Stock held by the undersigned or issued
or issuable pursuant to the Company’s equity incentive plans upon the exercise of any stock options or upon the vesting of any
other equity-based awards held by the undersigned through the net issuance by the Company of shares of Common Stock, a broker-assisted
cashless exercise or otherwise, in each case in order to satisfy any tax obligations due as a result of such exercise or vesting; provided,
that if any filing is required under Section 16(a) of the Exchange Act in connection with such exercise, vesting or disposition,
such filing shall include a statement to the effect that such filing is the result of the exercise or vesting of equity-based securities
pursuant to the Company’s equity incentive plans. The Lock-Up Period will commence on the date of this Lock-up Agreement and continue
and include the date that is sixty (60) days after the closing of the Offering.
In addition, the undersigned
further agrees that during the Lock-Up Period the undersigned will not, without the prior written consent of Maxim: (a) file or participate
in the filing with the SEC of any registration statement or circulate or participate in the circulation of any preliminary or final prospectus
or other disclosure document, in each case with respect to any proposed offering or sale of a Relevant Security, or (b) exercise
any rights the undersigned may have to require registration with the SEC of any proposed offering or sale of a Relevant Security.
In furtherance of the undersigned’s
obligations hereunder, the undersigned hereby authorizes the Company during the Lock-Up Period to cause any transfer agent for the Relevant
Securities to decline to transfer, and to note stop transfer restrictions on the stock register and other records relating to, Relevant
Securities for which the undersigned is the record owner and the transfer of which would be a violation of this Lock-Up Agreement and,
in the case of Relevant Securities for which the undersigned is the beneficial but not the record owner, agrees that during the Lock-Up
Period it will cause the record owner to cause the relevant transfer agent to decline to transfer, and to note stop transfer restrictions
on the stock register and other records relating to, such Relevant Securities to the extent such transfer would be a violation of this
Lock-Up Agreement.
Notwithstanding the foregoing,
the undersigned may transfer the undersigned’s Relevant Securities:
|
(i) |
as a bona fide gift or gifts, |
|
(ii) |
to any trust, partnership, limited liability company or other legal entity commonly used for estate planning purposes which is established for the direct or indirect benefit of the undersigned or a member of members of the immediate family of the undersigned, |
|
(iii) |
if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (1) to another corporation, partnership, limited liability company, trust or other business entity that is a direct or indirect affiliate (as defined in Rule 405 under the Securities Act) of the undersigned, (2) to limited partners, limited liability company members or stockholders of the undersigned, or (3) in connection with a sale, merger or transfer of all or substantially all of the assets of the undersigned or any other change of control of the undersigned, not undertaken for the purpose of avoiding the restrictions imposed by this Lock-Up Agreement, |
|
(iv) |
if the undersigned is a trust, to the beneficiary of such trust, |
|
(v) |
by testate or intestate succession, |
|
(vi) |
by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, |
|
(vii) |
if the undersigned is or was an officer, director or employee of the Company, to the Company pursuant to the Company’s right of repurchase upon termination of the undersigned’s service with the Company, or |
|
(viii) |
pursuant to the Placement Agency Agreement; |
provided, in the case of clauses (i)-(vii),
that (A) such transfer shall not involve a disposition for value, (B) the transferee agrees in writing with Maxim and the Company
to be bound by the terms of this Lock-Up Agreement, and (C) such transfer would not require any filing under Section 16(a) of
the Exchange Act and no such filing is voluntarily made.
In addition, the restrictions
set forth herein shall not prevent the undersigned from entering into a sales plan pursuant to Rule 10b5-1 under the Exchange Act
after the date hereof, provided that (i) a copy of such plan is provided to Maxim promptly upon entering into the same
and (ii) no sales or transfers may be made under such plan until the Lock-Up Period ends or this Lock-Up Agreement is terminated
in accordance with its terms.
For purposes of this Lock-Up
Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
The undersigned hereby represents
and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement and that this Lock-Up Agreement has
been duly authorized (if the undersigned is not a natural person) and constitutes the legal, valid and binding obligation of the undersigned,
enforceable in accordance with its terms. Upon request, the undersigned will execute any additional documents necessary in connection
with the enforcement hereof. Any obligations of the undersigned shall be binding upon the successors and assigns of the undersigned from
the date of this Lock-Up Agreement.
The undersigned understands
that, if the Placement Agency Agreement does not become effective, or if the Placement Agency Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for and delivery of the Securities to be sold thereunder,
the undersigned shall be released from all obligations under this Lock-Up Agreement.
This Lock-Up 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. “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.
The undersigned, whether or
not participating in the Offering, understands that Maxim is entering into the Placement Agency Agreement and proceeding with the Offering
in reliance upon this Lock-Up Agreement.
[Signature page follows]
This Lock-Up Agreement shall
be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.
Delivery of a signed copy of this Lock-Up Agreement by facsimile or e-mail/.pdf transmission shall be effective as the delivery of the
original hereof.
|
Very truly yours, |
|
|
|
Signature: |
|
|
|
|
|
Name (printed): |
|
|
|
|
Title (if applicable): |
|
|
|
|
Entity (if applicable): |
|
|
Exhibit 4.40
COMMON STOCK PURCHASE WARRANT
WISA
TECHNOLOGIES, INC.
Warrant Shares: ______ |
Issuance Date: ____, 2024 |
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”)
certifies that, for value received by the Company, _____ or its assigns (the “Holder”) is entitled, upon the terms
and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the Stockholder Approval
Date (as defined below) (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on the
fifth anniversary of the Stockholder Approval Date (the “Termination Date”) but not thereafter, to subscribe for from
WiSA Technologies, Inc., a Delaware corporation (the “Company”), up to ______ shares of Common Stock (as subject
to adjustment hereunder, the “Warrant Shares”). The subscription price of one share of Common Stock under this Warrant
shall be equal to the Exercise Price, as defined in Section 2(b). This Warrant shall initially be issued and maintained in the form
of a security held in book-entry form and The Depository Trust Company or its nominee (“DTC”) shall initially be the
sole registered holder of this Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant
to the terms of the Warrant Agency Agreement, in which case this sentence shall not apply.
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1.
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid Price”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New
York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock
is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market
(or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common
Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by
law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law
to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other
similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long
as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally are
open for use by customers on such day.
“Certificate of
Incorporation” means the Company’s certificate of incorporation, as amended, filed with the Secretary of State of the
State of Delaware.
“Convertible Securities”
means any shares or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible
into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may
hereafter be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time shares of Common
Stock, including, without limitation, any debt, preferred shares, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Purchase Agreement”
means the Securities Purchase Agreement, dated as of _____, 2024 among the Company and certain purchasers signatory thereto, as amended,
modified or supplemented from time to time in accordance with its terms.
“Registration Statement”
means the Company’s registration statement on Form S-1 (File No. 333-276631).
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Stockholder Approval”
means such approval as may be required by the applicable rules and regulations of The Nasdaq Stock Market LLC (or any successor
entity) from the stockholders of the Company with respect to each of (i) the issuance of the Warrants and all Warrant Shares issuable
upon the exercise thereof and (ii) if necessary, a proposal to amend the Certificate of Incorporation to increase the authorized
share capital of the Company to an amount sufficient to cover the Warrant Shares or to effectuate a reverse stock split whereby the authorized
shares capital is not split and is sufficient to cover the Warrant Shares (and such reverse split is effectuated)(the “Capital
Event”).
“Stockholder Approval
Date” means the date on which Stockholder Approval is received and deemed effective under Delaware law.
“Subsidiary”
means any subsidiary of the Company, which is actively engaged in a trade or business, and shall, where applicable, also include any
direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the Common Stock is traded on a Trading Market.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transfer Agent”
means VStock Transfer, LLC, the current transfer agent of the Company with a mailing address of 8 Lafayette Place, Woodmere, New York
11598, a phone number of (212) 828-8436 and an email address of shay@vstock.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if
the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock is then reported on the
Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per
share of Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by
an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrant Agency
Agreement” means that certain warrant agency agreement, dated on or about the Issuance Date, between the Company and the Warrant
Agent.
“Warrant Agent”
means the Transfer Agent and any successor warrant agent of the Company.
“Warrants”
means this Warrant and other Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section 2. Exercise.
a) Exercise of Warrant.
Subject to the provisions of Section 2(e) hereof, exercise of the subscription rights represented by this Warrant may be made,
in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to
the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto
(the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid,
the Holder shall deliver the aggregate Exercise Price for the Common Stock specified in the applicable Notice of Exercise by wire transfer
or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below
is specified in the applicable Notice of Exercise. No ink original Notice of Exercise shall be required. Notwithstanding anything herein
to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has subscribed
for all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender
this Warrant to the Company for cancellation as soon as reasonably practicable after the date on which the final Notice of Exercise is
delivered to the Company. Partial exercises of this Warrant resulting in subscriptions for a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the outstanding number of Warrant Shares issuable hereunder in an amount equal
to the applicable number of Warrant Shares subscribed for. The Holder and the Company shall maintain records showing the number of Warrant
Shares subscribed for and the date of such subscriptions. The Company shall deliver any objection to any Notice of Exercise within one
(1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and
agree that, by reason of the provisions of this paragraph, following the subscription for a portion of the Warrant Shares hereunder,
the number of Warrant Shares available for subscription hereunder at any given time may be less than the amount stated on the face hereof.
Notwithstanding the foregoing
in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing this
Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant
Agency Agreement, in which case this sentence shall not apply.
b) Exercise Price.
The exercise price per share of Common Stock under this Warrant shall be $____, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless Exercise.
If at the time of exercise hereof, there is no effective registration statement registering, or the prospectus contained therein is not
available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in whole or in part, at such
time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal
to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = as applicable: (i) the
VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both
executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered
pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in
Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of
the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the
Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the
time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular
trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after
the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on
the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is
both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such
Trading Day;
(B) = the Exercise Price of this
Warrant, as adjusted hereunder; and
(X) = the number of Warrant Shares
that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a
cash exercise rather than a cashless exercise.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of
the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrant being exercised. The Company agrees
not to take any position contrary to this Section 2(c).
Notwithstanding
anything to the contrary herein, the Holder may also effect an “alternative cashless exercise” on or after the thirty (30)
day anniversary of the Initial Exercise Date. In such event, the aggregate number of Warrant Shares issuable in such alternative cashless
exercise pursuant to any given Notice of Exercise electing to effect an alternative cashless exercise shall equal the product of (x) the
aggregate number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant
if such exercise were by means of a cash exercise rather than a cashless exercise and (y) 0.65.
d) Mechanics of Exercise.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares subscribed for hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with DTC through its Deposit
or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there
is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder
or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in
the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is
entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest
of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, provided that payment of the aggregate
Exercise Price (other than in the instance of a cashless exercise) is received by the Company one (1) Trading Day prior to such
second Trading Day after the delivery of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise
Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company
of the Notice of Exercise, provided that payment of the aggregate Exercise Price (other than in the instance of a cashless exercise)
is received by the Company one (1) Trading Day prior to such second Trading Day after the delivery of the Notice of Exercise (such
date, the “Warrant Share Delivery Date”). For the purposes of Regulation SHO under the Exchange Act, upon delivery
of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment
of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading
Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise.
If the Company fails for any reason to deliver or cause the delivery to the Holder the Warrant Shares subject to a Notice of Exercise
by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each
$1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise),
$10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading
Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees
to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As
used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days,
on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of
Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to subscribe for the unsubscribed for Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above
pursuant to an exercise on or before the Warrant Share Delivery Date (other than as a result of failure of the Holder to timely deliver
the aggregate Exercise Price, unless the Warrant is validly exercised by means of a cashless exercise), and if after such date the Holder
is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases,
shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving
upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by
which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased
exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to
the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation
was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant
Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number
of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder.
For example, if the Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to
an attempted exercise of this Warrant to subscribe for shares of Common Stock with an aggregate exercise price giving rise to such purchase
obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000.
The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request
of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available
to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect
to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms
hereof.
v. No Fractional
Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant.
As to any fraction of a share which the Holder would otherwise be entitled to subscribe for upon such exercise, the Company shall, at
its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise
Price or round down to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and
such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as
a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto; and (ii) the Company
shall use its best efforts to pay, or procure payment of issue or stamp taxes levied in connection with the issuance of the Warrant or
Warrant Shares to the Holder (“Relevant Taxes”). The Holder agrees to cooperate with the Company and provide all necessary
information and documentation to the Company in a timely manner (and in any event within 10 Business Days of request) to enable the Company
to procure payment of any Relevant Taxes and facilitate the making of any necessary filings in respect of Relevant Taxes required to
be made within applicable time limits. The Company shall not be liable for any Relevant Taxes or any penalty, fine, surcharge, interest,
charge, cost or other similar imposition arising in respect of Relevant Taxes to the extent that such amount arises or is increased as
a result of any failure by a Holder to timely provide the Company with any information or documentation requested pursuant to this Section 2(d)(vi).
The Company shall pay all Transfer Agent fees required for processing of any Notice of Exercise and all fees to DTC (or another established
clearing corporation performing similar functions) required for electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s Exercise
Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion
of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set
forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as
a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would
beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number
of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares
of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the
number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised
or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance
therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant
is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which
portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall
be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the
Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject
to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination,
and a submission of a Notice of Exercise shall be deemed a representation and warranty by the Holder of the foregoing determination.
In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the
Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or
its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The
“Beneficial Ownership Limitation” shall be 4.99% (or, upon election by the Holder prior to the issuance of any Warrants,
9.99%) of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock
issuable upon exercise of this Warrant. The Holder may, upon notice to the Company, increase or decrease the Beneficial Ownership Limitation
provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares
of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held
by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph
shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct
this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein
contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained
in this paragraph shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Share Dividends
and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share dividend or otherwise makes a distribution
or distributions on its Common Stock or any other equity or equity equivalent securities payable in Common Stock (which, for avoidance
of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding
shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse share split) outstanding shares
of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of Common Stock any share capital
of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of
shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall
be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of
this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment
made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) Adjustment Upon
Issuance of Shares of Common Stock. If, at any time while this Warrant is outstanding (such period, the “Adjustment Period”),
the Company issues, sells, enters into an agreement to sell, or grants any option to purchase, or sells, enters into an agreement to
sell, or grants any right to reprice, or otherwise disposes of or issues (or announces any offer, sale, grant or any option to purchase
or other disposition), or, in accordance with this Section 3(b), is deemed to have issued or sold, any shares of Common Stock or
Common Stock Equivalents (excluding any Excluded Securities (as defined below) issued or sold or deemed to have been issued or sold)
for a consideration per share less than a price equal to the Exercise Price in effect immediately prior to such issue or sale or deemed
issuance or sale (such lower price, the “Base Share Price,” and such Exercise Price then in effect is referred to as the
“Applicable Price”) (the foregoing a “Dilutive Issuance”), then simultaneously with the consummation
(or, if earlier, the announcement) of such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to
the Base Share Price, provided that, the Exercise Price will not be less than 51% of the Minimum Price (as defined under Nasdaq Listing
Rule 5635(d)) (subject to adjustment for reverse and forward stock splits, recapitalizations and similar transactions following
the Issue Date). If the Company enters into a Variable Rate Transaction (as defined below), the Company shall be deemed to have issued
shares of Common Stock or shares of Common Stock Equivalents at the lowest possible price, conversion price or exercise price at which
such securities may be issued, converted or exercised. “Excluded Securities” means any issuance of shares of Common
Stock, restricted share units, Options, warrants and/or Convertible Securities (i) under the Company’s current or future equity
incentive plans or issued to employees, directors, consultants or officers as compensation or consideration in the ordinary course of
business, including any issuance of Options (and the underlying shares of Common Stock) in exchange for Options issued under the Company’s
equity incentive plans; provided, that with respect to consultants only, such issuances do not exceed 1 million shares of Common
Stock (as adjusted for stock splits, reverse stock splits, stock dividends, stock combinations and similar events) in any 12 month period,
(ii) issued pursuant to agreements, Options, restricted share units, Convertible Securities or Adjustment Rights (as defined below)
existing as of the date hereof, (iii) issued pursuant to acquisitions (whether by merger, consolidation, purchase of equity, purchase
of assets, reorganization or otherwise), mergers, consolidations, reorganizations or strategic transactions approved by a majority of
the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equityholders of a Person)
which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business complementary with the business
of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction
in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing
in securities, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry
no registration rights that require or permit the filing of any registration statement in connection therewith or (iv) to which
a majority-in-interest of Holders of the Warrants consent in writing. “Adjustment Right” means any right
granted with respect to any securities issued in connection with, or with respect to, any issuance or sale (or deemed issuance or sale
in accordance with this Section 3(b)) of shares of Common Stock (other than rights of the type described in Sections 3(a) through
(e)) that could result in a decrease in the net consideration received by the Company in connection with, or with respect to, such securities
(including, without limitation, any cash settlement rights, cash adjustment or other similar rights). “Variable Rate Transaction”
means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable
or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise
price or exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the shares of Common
Stock at any time after the initial issuance of such debt or equity securities or (B) with a conversion, exercise or exchange price
that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence
of specified or contingent events directly or indirectly related to the business of the Company or the market for the shares of Common
Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit,
but excluding an “at-the-market offering”, whereby the Company may issue securities at a future determined price. For all
purposes of the foregoing, the following shall be applicable:
(i) Issuance
of Options. If the Company in any manner grants, issues or sells any Options (or enters into any agreement to grant, issue or sell)
and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon
conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the
terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued
and sold by the Company at the time of the granting or sale of such Option for such price per share. For purposes of this Section 3(b)(i),
the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Options or
upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to
the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received
or receivable by the Company with respect to any one share of Common Stock upon the granting or sale of such Option, upon exercise of
such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise
pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is
issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise
or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof minus
(2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting, issuance or sale
of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise
of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration received or receivable by, or benefit
conferred on, the holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Exercise Price
shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options
or otherwise pursuant to the terms of or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange
of such Convertible Securities.
(ii) Issuance
of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Convertible
Securities and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or
exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall
be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution
of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this
Section 3(b)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion,
exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum
of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon
the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion,
exercise or exchange of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price
set forth in such Convertible Security for which one share of Common Stock is issuable (or may become issuable assuming all possible
market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of
all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance or sale (or pursuant to
the agreement to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable
by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further
adjustment of the Exercise Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange
of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities
is made upon exercise of any Options for which adjustment of this Warrant has been or is to be made pursuant to other provisions of this
Section 3(b), except as contemplated below, no further adjustment of the Exercise Price shall be made by reason of such issuance
or sale.
(iii) Change
in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible
Securities are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other than
proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 3(a)),
the Exercise Price in effect at the time of such increase or decrease shall be adjusted to the Exercise Price which would have been in
effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration
or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section 3(b)(iii),
if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible Security that was outstanding
as of the Issuance Date) are increased or decreased in the manner described in the immediately preceding sentence, then such Option or
Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to
have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 3(b) shall be made if
such adjustment would result in an increase of the Exercise Price then in effect.
(iv) Calculation
of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”,
and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities” and together with
the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration
per share of Common Stock with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such
Unit, (y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one share of Common
Stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with Sections 3(b)(i) or 3(b)(ii) above
and (z) the lowest VWAP of the Common Stock on any Trading Day during the five (5) Trading Day period (the “Adjustment
Period”) immediately following the public announcement of such Dilutive Issuance (for the avoidance of doubt, if such public
announcement is released prior to the opening of the principal Trading Market of the Common Stock on a Trading Day, such Trading Day
shall be the first Trading Day in such five Trading Day period and if this Warrant is exercised, on any given Exercise Date during any
such Adjustment Period, solely with respect to such portion of this Warrant converted on such applicable Exercise Date, such applicable
Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately prior to such Exercise Date). If any shares
of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration
received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock,
Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by
the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in
which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such
security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options
or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is
the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and
business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case
may be). The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company
and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation
(the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading Days
after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected by the Company and
the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses
of such appraiser shall be borne by the Company.
c) Subsequent Rights
Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or
sells any Common Stock Equivalents or rights to purchase shares, warrants, securities or other property pro rata to the record holders
of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that
the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of
Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for
the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro Rata Distributions.
During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without
limitation, any distribution of cash, share or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (except to the extent an adjustment was already made pursuant
to Section 3(a)) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case,
the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if
the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations
on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record
is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the participation in such Distribution (provided, however, that, to the extent that the Holder’s
right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock
as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the
Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
e) Fundamental Transaction.
If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions
effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its Subsidiaries, taken
as a whole), directly or indirectly effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or
substantially all of its assets in one or a series of related transactions, except to the extent subject to an adjustment pursuant to
Section 3(a), (b), (c), or (d), (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the
Company or another Person) is completed pursuant to which holders of shares of Common Stock are permitted to sell, tender or exchange
their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding shares of
Common Stock or 50% or more of the voting power of the Common Stock of the Company, (iv) the Company, directly or indirectly, in
one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property,
or (v) the Company, directly or indirectly, in one or more related transactions consummates a share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock
or 50% or more of the voting power of the Common Stock of the Company (each a “Fundamental Transaction”), then, upon
any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable
upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to
any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise
of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply
to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such
Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate Consideration. If holders of shares of Common Stock are given
any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same
choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding
anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at
the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction
(or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder
by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of
this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the
Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors,
the Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in
the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders
of shares of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of
cash, shares or any combination thereof, or whether the holders of shares of Common Stock are given the choice to receive from among
alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if
holders of shares of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders
of shares of Common Stock will be deemed to have received shares of common stock of the Successor Entity (which Entity may be the Company
following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of
this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of
the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate
corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable
contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100
day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day
immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price per
share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the
value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the
period beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction
(or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request
pursuant to this Section 3(e) and (D) a remaining option time equal to the time between the date of the public announcement
of the applicable contemplated Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the
Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five
Business Days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall
cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”)
to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with
the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder
and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder,
deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially
similar in form and substance to this Warrant which is exercisable for a corresponding amount of share capital of such Successor Entity
(or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard
to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the
exercise price hereunder to such share capital (but taking into account the relative value of the shares of Common Stock pursuant to
such Fundamental Transaction and the value of such share capital, such amount of share capital and such exercise price being for the
purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and
which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor
Entity shall be added to the term “Company” under this Warrant (so that from and after the occurrence or consummation of
such Fundamental Transaction, each and every provision of this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor
Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto
and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and
the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally,
had been named as the Company herein.
The Company shall instruct
the Warrant Agent in writing to mail, by first class mail, postage prepaid, to each Holder, written notice of the execution of any such
amendment, supplement or agreement with the Successor Entity. Any supplemented or amended agreement entered into by the successor corporation
or transferee shall provide for adjustments, which shall be as nearly equivalent as may be practicable to the adjustments provided for
in this Section 3(e). The Warrant Agent shall have no duty, responsibility or obligation to determine the correctness of any provisions
contained in such agreement or such notice, including but not limited to any provisions relating either to the kind or amount of securities
or other property receivable upon exercise of warrants or with respect to the method employed and provided therein for any adjustments,
and shall be entitled to rely conclusively for all purposes upon the provisions contained in any such agreement. The provisions of this
Section 3(e) shall similarly apply to successive reclassifications, changes, consolidations, mergers, sales and conveyances
of the kind described above.
f) Share Combination Event
Adjustment. In addition to the adjustments set forth in this Section 3, if at any time on or after the Issue Date there
occurs any share split, reverse share split, share dividend, share combination recapitalization or other similar transaction involving
the shares of Common Stock (each, a “Share Combination Event”, and such date thereof, the “Share Combination
Event Date”) and the lowest VWAP during the period commencing five (5) consecutive Trading Days immediately preceding and
through the five (5) consecutive Trading Days immediately following the Share Combination Event Date (the “Event Market
Price”) (provided if the Share Combination Event is effective after close of Trading on the primary Trading Market, then commencing
on the next Trading Day which period shall be the “Share Combination Adjustment Period”) is less than the Exercise
Price then in effect (after giving effect to the adjustment in clause 3(a) above), then at the close of trading on the primary Trading
Market on the last day of the Share Combination Adjustment Period, the Exercise Price then in effect on such 5th Trading Day shall be
reduced (but in no event increased) to the Event Market Price.
g) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be
the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
h) Notice to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the
Common Stock, except for any recurring cash dividend (B) the Company shall declare a special nonrecurring cash dividend on or a
redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants
to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of
the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company
(and its Subsidiaries, taken as a whole) is a party, any sale or transfer of all or substantially all of the assets of the Company, or
any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company
shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case,
the Company shall cause to be delivered by facsimile or email to the Holder at its last facsimile number or email address as it shall
appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled
to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver
such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified
in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to
the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer
of Warrant.
a) Transferability.
This Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of
the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall
issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three
(3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The
Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the subscription for Warrant Shares without
having a new Warrant issued.
b) New Warrants.
If this Warrant is not held in global form through DTC, this Warrant may be divided or combined with other Warrants upon presentation
hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants
are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which
may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be
dated the Issuance Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register.
The Warrant Agent shall register this Warrant, upon records to be maintained by the Warrant Agent for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company and the Warrant Agent may deem and treat
the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a) No Rights as Stockholder
Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as
a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3.
Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or
to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b) Loss, Theft, Destruction
or Mutilation of Warrant. The Company covenants that upon receipt by the Company of an affidavit of loss reasonably satisfactory
to the Company evidencing the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant
Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it, and upon surrender and cancellation
of such Warrant or share certificate, if mutilated, the Company will make and deliver a new Warrant or share certificate of like tenor
and dated as of such cancellation, in lieu of such Warrant or share certificate.
c) Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized Shares.
The Company covenants that, following the occurrence of a Capital Event and thereafter during the period the Warrant is outstanding,
it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any subscription rights under this Warrant. The Company further covenants that its issuance of this Warrant
shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise
of the subscription rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such
Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the
Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the
exercise of the subscription rights represented by this Warrant will, upon exercise of the subscription rights represented by this Warrant
and payment of the Exercise Price for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and
nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue). Except and to the extent as waived or consented to by the holders
of a majority of the then outstanding Warrants (based on the number of Warrant Shares underlying such Warrants), the Company shall not
by any action, including, without limitation, amending its articles of incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant
against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant
Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such
action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions
or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations
under this Warrant. Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant
is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto,
as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
e) Governing Law.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof.
f) Jurisdiction. Each
party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this
Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, stockholders, partners, members,
employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan
for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party
in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs
and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding the foregoing,
nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under the federal securities
laws.
g) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
h) Nonwaiver and Expenses.
No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such
right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant, if
the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the
Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited
to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
i) Notices. Any
and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally, by facsimile, e-mail or sent by a nationally recognized overnight courier
service, addressed to:
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, OR 97006
Attn: Brett Moyer, Chief Executive Officer
Email: bmoyer@wisatechnologies.com
or such other facsimile number, email address
or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries
to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile or e-mail, or sent by a nationally
recognized overnight courier service addressed to each Holder at the facsimile number, e-mail address or address of such Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (a) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail (or
e-mail attachment) at the email address set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York
City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number or e-mail (or e-mail attachment) at the e-mail address as set forth on the signature pages attached
hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd)
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt
by the party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the
Commission pursuant to a Current Report on Form 8-K.
j) Limitation of Liability.
No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and
no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price
of any shares of Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of
the Company.
k) Remedies. The
Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
l) Successors and Assigns.
Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and
be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions
of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder
or holder of Warrant Shares.
m) Amendment. This
Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the
Holder or the beneficial owner of this Warrant, on the other hand.
n) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
o) Headings. The
headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
p) Warrant Agency Agreement.
If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued subject to the Warrant Agency
Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant Agency Agreement, the provisions
of this Warrant shall govern and be controlling.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
|
WISA TECHNOLOGIES, INC. |
|
|
|
|
|
|
|
By: |
|
|
Name: |
Brett Moyer |
|
Title: |
Chief Executive Officer |
NOTICE OF EXERCISE
TO: |
WISA TECHNOLOGIES, INC. |
(1) The undersigned
hereby elects to subscribe for ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only required if
exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take
the form of (check applicable box):
¨ in
lawful money of the United States; or
¨ if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c),
to exercise this Warrant with respect to the maximum number of Warrant Shares issuable pursuant to the cashless exercise procedure set
forth in subsection 2(c).
(3) Please issue said
Warrant Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall
be delivered to the following DWAC Account Number:
DTC number: |
|
|
|
Account name: |
|
|
|
Account number: |
|
[SIGNATURE OF HOLDER]
Name of Investing Entity: |
|
|
|
Signature of Authorized Signatory of Investing Entity: |
|
|
|
Name of Authorized Signatory: |
|
Title of Authorized Signatory: |
|
|
|
Date: |
|
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: |
|
|
(Please Print) |
|
|
Address: |
|
|
(Please Print) |
|
|
Phone Number: |
|
Email Address: |
|
Dated: _______________ __, ______ |
|
Holder’s Signature: _______________ |
|
Holder’s Address: _______________ |
|
Exhibit 4.41
PRE-FUNDED COMMON STOCK PURCHASE WARRANT
WISA TECHNOLOGIES, INC.
Warrant Shares: _______ |
Initial Exercise Date:
___________, 2024 |
THIS PRE-FUNDED COMMON STOCK
PURCHASE WARRANT (this “Warrant”) certifies that, for value received, _____________, or its assigns (the “Holder”),
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”), and until this Warrant is exercised in full (the “Termination
Date”) but not thereafter, to subscribe for from WiSA Technologies, Inc., a Delaware corporation (the “Company”),
up to ______ shares of Common Stock (as subject to adjustment hereunder, the “Warrant Shares”). The subscription price
of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b). This Warrant shall
initially be issued and maintained in the form of a security held in book-entry form and The Depository Trust Company or its nominee (“DTC”)
shall initially be the sole registered holder of this Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated
form pursuant to the terms of the Warrant Agency Agreement, in which case this sentence shall not apply.
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1.
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid Price”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New
York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock
is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market
(or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of 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 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, 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 _____, 2024 among the Company and certain purchasers signatory thereto, as amended,
modified or supplemented from time to time in accordance with its terms.
“Registration Statement”
means the Company’s registration statement on Form S-1 (File No. 333-276631).
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company, which is actively engaged in a trade or business, and shall, where applicable, also include any direct
or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the Common Stock is traded on a Trading Market.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).
“Transfer Agent”
means VStock Transfer, LLC, the current transfer agent of the Company with a mailing address of 8 Lafayette Place, Woodmere, New York
11598, a phone number of (212) 828-8436 and an email address of shay@vstock.com, and any successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if
the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock 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 Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrant Agency Agreement”
means that certain warrant agency agreement, dated on or about the Initial Exercise Date, between the Company and the Warrant Agent.
“Warrant Agent”
means the Transfer Agent and any successor warrant agent of the Company.
“Warrants”
means this Warrant and other pre-funded Common Stock purchase warrants issued by the Company pursuant to the Registration Statement.
Section 2. Exercise.
a) Exercise
of Warrant. Subject to the provisions of Section 2(e) hereof, exercise of the subscription rights represented by this Warrant
may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by
delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed
hereto (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number
of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise
as aforesaid, the Holder shall deliver the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire
transfer 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 within
five (5) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant
resulting in subscriptions for of 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) Trading Day of receipt of such notice. The
Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following
the subscription for a portion of the Warrant Shares hereunder, the number of Warrant Shares available for subscription hereunder at any
given time may be less than the amount stated on the face hereof.
Notwithstanding
the foregoing in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing
this Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant
Agency Agreement, in which case this sentence shall not apply.
b) Exercise
Price The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.001 per Warrant Share, was pre-funded
to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal exercise
price of $0.001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The
Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance
or for any reason whatsoever. The remaining unpaid exercise price per shares of Common Stock under this Warrant shall be $0.001, subject
to adjustment hereunder (the “Exercise Price”).
c) Cashless
Exercise. 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)(68) 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. 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 Warrants being exercised. The Company agrees not to take any
position contrary to this Section 2(c).
d) Mechanics of Exercise.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares subscribed for hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The 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. Notwithstanding the foregoing, with respect
to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, which may
be delivered at any time after the time of execution of the Purchase Agreement, the Company agrees to deliver the Warrant Shares subject
to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the
Warrant Share Delivery Date for purposes hereunder. Notwithstanding anything to the contrary contained herein, the Company shall not be
required to deliver any shares of Common Stock upon a cash exercise of a Warrant unless or until the aggregate Exercise Price with respect
to such exercise has been delivered to the Company.
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 tax or other incidental expense
in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares
shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that, (i) 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 the Depository Trust Company
(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 total 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 request of a Holder, the Company shall within one Trading Day confirm 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 a 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, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e),
provided that the Beneficial Ownership Limitation shall in no event exceed 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 ownership of shares of Common Stock in excess of 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) in
order to correct this paragraph (or any portion hereof), if necessary, 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 common 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) 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).
c) 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).
d) 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) or (c), (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, (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 stock or 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 more than
50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making
or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business
combination) (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. 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 in accordance
with the provisions of this Section 3(d) 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 succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions
of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and
power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor
Entity had been named as the Company herein.
e) 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.
f) 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 shares of 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
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 shares of 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 shares
of 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 five (5) Trading
Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. This 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 initial issuance date of this Warrant 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.
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 evidence reasonably satisfactory
to it of 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, 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 it is finally adjudicated (without possibility of appeal) that the Company has willfully and knowingly failed to comply with
any provision of this Warrant, which has resulted 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 seek
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 and the terms hereof, 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, on the other hand.
n) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
o) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
p) Warrant
Agency Agreement. If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued subject
to the Warrant Agency Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant Agency
Agreement, the provisions of this Warrant shall govern and be controlling.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
|
WISA TECHNOLOGIES, INC. |
|
|
|
|
By: |
|
|
|
Name: Brett Moyer |
|
|
Title: Chief Executive Officer |
NOTICE OF EXERCISE
TO: WISA
TECHNOLOGIES, INC.
(1) The undersigned hereby
elects to subscribe for ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only required if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable
box):
¨ in lawful money of the United States by wire transfer;
or
¨ if permitted the cancellation of
such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with
respect to the maximum number of Warrant Shares issuable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant
Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following
DWAC Account Number:
[SIGNATURE OF HOLDER]
Name of Investing Entity: |
|
Signature of Authorized Signatory of Investing Entity: |
|
Name of Authorized Signatory: |
|
Title of Authorized Signatory: |
|
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply the 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: |
|
|
(Please Print) |
Address: |
|
|
|
|
|
|
(Please Print) |
Phone Number: |
|
Email Address: |
|
|
|
Dated: ______________________ __, ______ |
|
Holder’s Signature: |
|
|
|
|
|
Holder’s Address: |
|
|
Exhibit 5.1
February 5, 2024
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, OR 97006
Ladies and Gentlemen:
We have acted as securities
counsel for WiSA Technologies, Inc., a Delaware corporation (the “Company”), in connection with the preparation of
a Registration Statement on Form S-1 (Registration No. 333-276631) (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 January 19, 2024 and amended on the date hereof, relating to the proposed public
offering of: (A) up to 100,000,000 units (the “Units”), each Unit consisting of (i) one share of common stock of the
Company, par value $0.0001 per share (the “Shares”) and (ii) one common stock purchase warrant (the “Warrants”),
each such Warrant being exercisable from time to time for one Share (the “Warrant Shares”); and (B) up to 100,000,000
pre-funded units (the “Pre-Funded Units”), each Pre-Funded Unit consisting of (i) one pre-funded warrant (the “Pre-Funded
Warrants”), each such Pre-Funded Warrant being exercisable from time to time for one Share (the “Pre-Funded Warrant
Shares”) and (ii) one Warrant. The Units, Shares, Warrants, Warrant Shares, Pre-Funded Units, Pre-Funded Warrants and Pre-Funded
Warrant Shares are collectively referred to herein as the “Securities”. The Securities will be sold pursuant to the
Registration Statement and one or more securities purchase agreements (the “Agreements”) by and among the Company and
certain accredited investors or qualified institutional buyers identified on the signature pages thereto (collectively, the “Investors”).
As noted in the Registration Statement, for each Pre-Funded Unit sold, the number of Units sold will be decreased on a one-for-one basis.
This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K,
17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
As counsel to the Company
in connection with the proposed potential issuance and sale of the Securities, we have examined: (i) the Company’s certificate of
incorporation and bylaws, both as currently in effect; (ii) certain resolutions of the board of directors of the Company relating to the
sale of the Securities (the “Resolutions”); (iii) the form of Agreement; (iv) the Registration Statement; and (v) 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.
Based upon, subject to and
limited by the foregoing, we are of the opinion that following (i) execution and delivery by the Company and each of the Investors of
the Agreements, (ii) effectiveness of the Registration Statement, (iii) issuance of the Securities pursuant to the terms of the Agreements,
and (iv) receipt by the Company of the consideration for the Securities specified in the Resolutions:
(a) The Units and Pre-Funded
Units will be duly authorized for issuance and, when issued, delivered and paid for in accordance with the terms of the Agreements and
in accordance with and in the manner described in the Registration Statement, the Units and Pre-Funded Units will be validly issued, fully
paid and non-assessable;
(b) The Shares will be duly
authorized for issuance and, when issued, delivered and paid for in accordance with the terms of the Agreements and in accordance with
and in the manner described in the Registration Statement, will be validly issued, fully paid and nonassessable;
(c) The Warrants and Pre-Funded
Warrants will be duly authorized for issuance and, when issued and sold in accordance with the Agreements, the Warrants and the Warrant
Agency Agreement and in accordance with and in the manner described in the Registration Statement, and duly executed and delivered by
the Company to the Investors against payment therefor, will constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their respective terms; and
(d) The Warrant Shares and
Pre-Funded Warrant Shares will be duly authorized for issuance and, when issued and paid for and delivered by the Company and upon valid
exercise of the Warrants or Pre-Funded Warrants, as applicable, and against receipt of the exercise price therefor, in accordance with
the provisions of the Agreements, Warrants or Pre-Funded Warrants, as applicable, and the Warrant Agency Agreement, and in accordance
with and in the manner described in the Registration Statement, will be validly issued, fully paid and nonassessable.
It is understood that this
opinion is to be used only in connection with the offer, sale, and issuance of the Securities while the Registration Statement is in effect.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in
the Registration Statement. In giving this consent, we do not admit that we are “experts” within the meaning of Section 11
of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
|
Very truly yours, |
|
|
|
/s/ Sullivan & Worcester LLP |
|
Sullivan & Worcester LLP |
Exhibit 10.79
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of ______, 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 an effective registration statement under the Securities
Act (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.
“Amendment”
shall have the meaning ascribed to such term in Section 4.9.
“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).
“Blank Rome”
means Blank Rome LLP, with offices located at 1271 Avenue of the Americas, New York, New York 10022.
“Board of Directors”
means the board of directors of 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
open for use by customers on such day.
“Capital Event”
shall have the meaning ascribed to such term in Section 4.9(B).
“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 1633 Broadway, New York, New York 10019.
“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 otherwise 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.
“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).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up Agreement”
means the Lock-Up Agreement, dated on or prior to the date hereof, by and among the Company and the directors and officers of the Company,
in the form of Exhibit C attached hereto.
“Material Adverse
Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Per Common Unit
Purchase Price” equals $[__], 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 $[__], 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 February [__], 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.
“Preliminary Prospectus”
means any preliminary prospectus included in the Registration Statement, as originally filed or as part of any amendment thereto, or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Securities Act.
“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”
means the final pricing prospectus filed for the Registration Statement.
“Purchaser Party” shall have
the meaning ascribed to such term in Section 4.8.
“Registration Statement”
means the effective registration statement on Form S-1 filed with the Commission (File No. 333-276631) which registers the sale
of the Units, the Shares, the Pre-Funded Warrants, the Pre-Funded Warrant Shares, the Warrants and the 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.
“Series B Repurchase
and Cancellation Transaction” means the transactions contemplated by the Side Letter Agreements.
“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).
“Side Letter Agreements”
means certain side letter agreements, dated on or about February 2, 2024, by and among the Company and certain holders of the Company’s
Series B Convertible Preferred Stock, par value $0.0001 per share.
“Stockholder’s
Meeting” shall have the meaning ascribed to such term in Section 4.9(B).
“Stockholder Approval” shall
have the meaning ascribed to such term in Section 4.9(B).
“Stockholder Approval
Date” shall have the meaning ascribed to such term in Section 4.9(B).
“Subscription Amount” means,
as to each Purchaser, the aggregate amount to be paid for 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 Lock-Up Agreements, the Pre-Funded Warrants, the Warrants, the Warrant Agency Agreement, the Voting Agreement,
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.
“Warrant Agency Agreement”
means that certain warrant agency agreement, dated as of February [__], 2024, by and between the Company and the Transfer Agent.
“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 $[____] 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, the Placement Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall
be made by the Placement Agent (or its clearing firm) by wire transfer to the Company), and delivery of the Pre-Funded Warrants
and the Warrants shall be made via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
for the account of the applicable Purchaser. 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 Placement Agent;
(iii) a
cold comfort letter, addressed to the Placement Agent, in form and substance reasonably acceptable to the Placement Agent and the Purchasers,
from the Company’s independent registered public accounting firm on the date of execution of this Agreement and a bring down comfort
letter on the Closing Date;
(iv) a
duly executed Officers’ Certificate in customary form reasonably acceptable to the Placement Agent;
(v) a
duly executed Secretary’s Certificate in customary form reasonably acceptable to the Placement Agent;
(vi) if
applicable, a duly executed Chief Financial Officer Certificate in customary form reasonably acceptable to the Placement Agent;
(vii) the
Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the Chief
Executive Officer or Chief Financial Officer;
(viii) a
copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via DWAC Shares
equal to such Purchaser’s Common Unit Subscription Amount divided by the Per Common Unit Purchase Price, registered in the name
of such Purchaser;
(ix) if
applicable, a Pre-Funded Warrant registered in the name of such Purchaser 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 $0.001, subject to adjustment therein via DWAC for the account of such Purchaser;
(x) Warrants
registered in the name of such Purchaser, each such 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 $[__] per share, subject to adjustment
therein via DWAC for the account of such Purchaser;
(xi) the
duly executed Lock-Up Agreements; and
(xii) the
Preliminary Prospectus and the Prospectus (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;
(ii) such
Purchaser’s Subscription Amount, which shall be made available for DVP settlement with the Company or its designee;
(iii) a
Voting Agreement, duly executed by such Purchaser, in substantially the form attached hereto as Exhibit D.
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, the Stockholder Approval and if applicable, the Series B
Repurchase and Cancellation Transaction. 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 and price reset features contained in securities disclosed in the SEC Reports), or (iii) subject
to the Required Approvals and if applicable, the Series B Repurchase and Cancellation Transaction, 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 or made under the Securities Act, (iii) the filing with
the Commission of the Prospectus, (iv) applicable approvals by the Financial Industry Regulatory Authority (“FINRA”),
(iv) application(s) to each applicable Trading Market for the listing of the Shares and Warrant Shares for trading thereon,
(v) such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”)
and (vi) such as those that, if not obtained, given or made, would not reasonably be expected to result in a Material Adverse Effect.
(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 prepared and filed the Registration Statement in conformity
with the requirements of the Securities Act, which became effective on [_________], 2024 (the “Effective Date”), including
the Preliminary 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 Preliminary Prospectus or the Prospectus 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 with the Commission pursuant to Rule 424(b). At the
time the Registration Statement and any amendments thereto became effective, at the date of this Agreement 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 Preliminary Prospectus and the Prospectus and any amendments
or supplements thereto, at the time the Preliminary Prospectus or the Prospectus, as applicable, 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. The Securities conform in all material respects
to all statements with respect thereto contained in the Registration Statement and the Prospectus.
(g) Capitalization. The
capitalization of the Company as of the date hereof is as set forth in the SEC Reports. Except as disclosed in the Registration Statement
and Prospectus, 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 Registration Statement
and Prospectus, 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, 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, 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, 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 Stockholder Approval and if applicable, the Series B Repurchase and Cancellation Transaction, 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 Preliminary Prospectus and the Prospectus, 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 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
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 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 disclosed 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, (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, 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 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 Registration Statement and Prospectus, 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 Registration Statement and Prospectus (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.
(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 Registration Statement and Prospectus, 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 maintains 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 Securities, 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 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 and prior to the Closing Date, the Warrants
will be eligible for electronic transfer through the Depository Trust Company or another established clearing corporation.
(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 Preliminary
Prospectus or the Prospectus. 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, 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, 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. 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
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.
(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,
2023.
(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)), 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) [Reserved.]
(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 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 the Financial Industry Regulatory Authority (“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 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 and except for securities issued to the Placement
Agent as disclosed in the 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 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(mm) 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) Officers’
Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Purchasers shall be deemed
a representation and warranty by the Company to the Purchasers as to the matters covered thereby.
(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.
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 the 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) [Reserved].
(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 had the opportunity to review 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. 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.
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 Pre-Funded Warrant
Shares and Warrant Shares. If all or any portion of a Pre-Funded Warrant or a Warrant is exercised at a time when there
is an effective registration statement to cover the issuance or resale of the Pre-Funded Warrant Shares or the Warrant Shares,
as applicable, or if the Pre-Funded Warrant or the Warrant is exercised via cashless exercise, the Pre-Funded Warrant
Shares or Warrant Shares, as applicable, issued pursuant to any such exercise shall be issued free of all legends. If at any time following
the date hereof the Registration Statement (or any subsequent registration statement registering the sale or resale of the Pre-Funded Warrant
Shares or the Warrant Shares, as applicable) is not effective or is not otherwise available for the sale or resale of the Pre-Funded Warrant
Shares or the Warrant Shares, as applicable, the Company shall immediately notify the holders of the Pre-Funded Warrants or
the Warrants, as applicable, in writing that such registration statement is not then effective and thereafter shall promptly notify such
holders when the registration statement is effective again and available for the sale or resale of the Pre-Funded Warrant Shares
or the Warrant Shares, as applicable (it being understood and agreed that the foregoing shall not limit the ability of the Company to
issue, or any Purchaser to sell, any of the Pre-Funded Warrant Shares or the Warrant Shares, as applicable, in compliance with
applicable federal and state securities laws). The Company shall use reasonable best efforts to keep a registration statement (including
the Registration Statement) registering the issuance or resale of the Pre-Funded Warrant Shares and the Warrant Shares, as applicable,
effective during the term of the Pre-Funded Warrants and the Warrants, as applicable.
4.2 Furnishing
of Information. Until the earlier of the time that (i) no Purchaser owns 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.
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 Preliminary
Prospectus and the Prospectus 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). 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.
(A) Subject
to the Series B Repurchase and Cancellation Transaction, if applicable, as of the date hereof, the Company has reserved and will
reserve, as applicable, 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 and Pre-Funded Warrant
Shares pursuant to any exercise of the Pre-Funded Warrants, and after the Stockholder Approval Date, the Company will reserve
and the Company shall continue to reserve and keep available during the period the Warrants are outstanding, free of preemptive rights,
a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue Warrant Shares pursuant to any exercise
of the Warrants.
(B) 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 90 days from the Closing Date, for the
purpose of seeking approval of the Company’s stockholders (“Stockholder Approval”) with respect to each of
(i) the issuance of the Warrants and all Warrant Shares issuable upon the exercise thereof and (ii) if necessary, a
proposal to amend the Certificate of Incorporation to increase the authorized share capital of the Company to an amount sufficient
to cover the Warrant Shares or to effectuate a reverse stock split whereby the authorized shares capital is not split and is
sufficient to cover the Warrant Shares (and such reverse split is effectuated) (a “Capital Event”). In
connection therewith, the Company will as soon as reasonably practicable after the Closing Date 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 Company’s Board of Directors 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”). No later than two (2) business days following the Stockholder
Approval of the Capital Event, the Company shall file with the Secretary of State of the State of Delaware a certificate of
amendment to the Company’s Certificate of Incorporation to effect the Capital Event (the “Amendment”),
which Amendment shall provide that it shall become immediately effective upon filing with the Secretary of State of the State of
Delaware, which date shall be the Stockholder Approval Date. The Company shall issue a press release announcing the effectiveness of
the Stockholder Approval of the Capital Event no later than one (1) business day after such filing.
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 [RESERVED].
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 Lock-Up
Agreements. Subject to the discretion of the Placement Agent, the Company shall not amend, modify, waive or terminate any provision
of any of the Lock-Up Agreements except to extend the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement
in accordance with its terms. If any party to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly
use its best efforts to seek specific performance of the terms of such Lock-Up Agreement.
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, the Preliminary Prospectus and the Prospectus,
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 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. For
reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through
Blank Rome. Blank Rome does not represent any of the Purchasers and only represents the Placement Agent. 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
1633 Broadway
New York, NY 10019
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.
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 ¨ 4.99% or ¨ 9.99%
Warrant
Shares: ________________Beneficial Ownership Blocker ¨ 4.99% or ¨ 9.99%
EIN Number: ____________________
¨ 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
Exhibit B
Form of Warrant
Exhibit C
Form of Lock-Up Agreement
Exhibit D
Form of Voting Agreement
Exhibit 10.80
WARRANT AGENCY AGREEMENT
WARRANT AGENCY AGREEMENT (this
“Warrant Agreement”) dated as of February [*], 2024 (the “Issuance Date”) between WiSA Technologies, Inc.,
a company incorporated under the laws of the State of Delaware (the “Company”), and VStock Transfer, LLC (the “Warrant
Agent”).
WHEREAS, pursuant to
the terms of that certain placement agency agreement (the “Placement Agency Agreement”), dated February [*], 2024,
by and between the Company and Maxim Group LLC, as exclusive placement agent, the Company is engaged in a public offering (the “Offering”)
of (x) up to 100,000,000 units (the “Units”), with each Unit consisting of (i) one share of common stock,
par value $0.0001 per share (the “Common Stock”), of the Company and (ii) one common stock purchase warrant (the
“Common Warrants”) exercisable for one share of Common Stock; and (y) up to 100,000,000 pre-funded units (the
“Pre-Funded Units”), with each Pre-Funded Unit consisting of (i) one pre-funded warrant exercisable for one share
of Common Stock at an exercise price of $0.001 per share (the “Pre-Funded Warrants”, together with the Common Warrants,
the “Warrants”), (ii) one Common Warrant;
WHEREAS, the Company
has filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form S-1
(File No. 333-276631) (as the same may be amended from time to time, the “Registration Statement”), for the registration
under the Securities Act of 1933, as amended (the “Securities Act”), of the Units, Pre-Funded Units, shares of Common
Stock, Pre-Funded Warrants, Warrants and shares of Common Stock issuable upon exercise of the Warrants and Pre-Funded Warrants included
in the Units and Pre-Funded Units, as applicable (the “Warrant Shares”), and such Registration Statement was declared
effective on [*], 2024;
WHEREAS, the Company
desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in accordance with the terms set
forth in this Warrant Agreement in connection with the issuance, registration, transfer, exchange and exercise of the Warrants;
WHEREAS, the Company
desires to provide for the provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Common Warrants and Pre-Funded Warrants,
as applicable; and
WHEREAS, all acts and
things have been done and performed which are necessary to make the Warrants the valid, binding and legal obligations of the Company,
and to authorize the execution and delivery of this Warrant Agreement.
NOW, THEREFORE, in
consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Appointment of Warrant
Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company with respect to the Warrants, and the Warrant
Agent hereby accepts such appointment and agrees to perform the same in accordance with the express terms and conditions set forth in
this Warrant Agreement (and no implied terms or conditions).
2. Warrants. The Warrants
shall be registered securities and shall initially be evidenced by a global certificate in the form of Exhibit A (as it relates
to the Common Warrants) or Exhibit A2 (as it relates to the Pre-Funded Warrants) (the “Global Certificate”)
attached to this Warrant Agreement, which shall be deposited on behalf of the Company with a custodian for The Depository Trust Company
(“DTC”) and registered in the name of Cede & Co., a nominee of DTC. If DTC subsequently ceases to make its
book-entry settlement system available for the Warrants, the Company shall instruct the Warrant Agent regarding making other arrangements
for book-entry settlement. In the event that the Warrants are not eligible for, or it is no longer necessary to have the Warrants available
in, book-entry form, the Company shall instruct the Warrant Agent to provide written instructions to DTC to deliver to the Warrant Agent
for cancellation the Global Certificate or Certificates, and the Company shall instruct the Warrant Agent to deliver to DTC separate certificates
evidencing Warrants (“Definitive Certificates” and, together with the Global Certificate, “Warrant Certificates”)
registered as requested through the DTC system. The Definitive Certificates, together with the form of election to purchase Common Stock
(the “Notice of Exercise”) and the form of assignment to be printed on the reverse thereof, shall be substantially
in the form of Exhibit B1 (as it relates to the Common Warrants) or Exhibit B2 (as it relates to the Pre-Funded
Warrants) attached hereto.
2.1. Issuance and Registration
of Warrants.
2.1.1. Warrant Register.
The Warrant Agent shall maintain books (“Warrant Register”) for the registration of original issuance and the registration
of transfer of the Warrants.
2.1.2. Issuance of Warrants.
Upon the initial issuance of the Warrants, the Warrant Agent shall issue the Global Certificates and deliver the Warrants in the DTC book-entry
settlement system in accordance with written instructions delivered to the Warrant Agent by the Company. Ownership of security entitlements
in the Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained (i) by DTC and
(ii) by institutions that have accounts with DTC (each, a “Participant”). A Holder has the right to elect at any
time or from time to time a Warrant Exchange (as defined below) pursuant to a Warrant Certificate Request Notice (as defined below). Upon
written notice by a Holder to the Warrant Agent and the Company for the exchange of some or all of such Holder’s Warrants held in
book entry form for a Definitive Certificate evidencing the same number of Warrants, which request shall be in the form attached hereto
as Annex A1 (as it relates to the Common Warrants) or Annex A2 (as it relates to the Pre-Funded Warrants) (such notice,
the “Warrant Certificate Request Notice” and the date of delivery of such Warrant Certificate Request Notice by the
Holder, the “Warrant Certificate Request Notice Date” and the actual surrender upon delivery by the Holder of a number
of Warrants in the DTC book-entry settlement system for the same number of Warrants evidenced by a Definitive Certificate, a “Warrant
Exchange”), the Warrant Agent shall promptly effect the Warrant Exchange and shall promptly issue and deliver to the Holder
a Definitive Certificate for such number of Warrants in the name set forth in the Warrant Certificate Request Notice. Such Definitive
Certificate shall be dated the original issue date of the Warrants and shall be manually executed by an authorized signatory of the Company
and shall be in the form attached hereto as Exhibit B1 (as it related to the Common Warrants) or Exhibit B2 (as
it relates to the Pre-Funded Warrants). In connection with a Warrant Exchange, the Company agrees to deliver, or to direct the Warrant
Agent to deliver, the Definitive Certificate to the Holder within two (2) Trading Days of the Warrant Certificate Request Notice
pursuant to the delivery instructions in the Warrant Certificate Request Notice (“Warrant Certificate Delivery Date”).
If the Company fails for any reason to deliver or cause the delivery to the Holder the Definitive Certificate subject to the Warrant Certificate
Request Notice by the Warrant Certificate 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 evidenced by such Definitive Certificate (based on the VWAP (as defined in the Warrant) of
the Common Stock on the Warrant Certificate Request Notice Date), $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 Certificate Delivery Date until such Definitive
Certificate is delivered or, prior to delivery of such Warrant Certificate, the Holder rescinds such Warrant Exchange. Notwithstanding
the forgoing, the Warrant Agent shall not, in any event, be subject to, or responsible for, liquidated damages or any “buy-in”
penalties contemplated in connection with the Warrants. The Company covenants and agrees that, upon the date of delivery of the Warrant
Certificate Request Notice, the Holder shall be deemed to be the holder of the Definitive Certificate and, notwithstanding anything to
the contrary set forth herein, the Definitive Certificate shall be deemed for all purposes to contain all of the terms and conditions
of the Warrants evidenced by such Definitive Certificate and the terms of this Warrant Agreement. In the event a beneficial owner requests
a Warrant Exchange, upon issuance of the paper Definitive Certificate, the Warrant Agent shall continue to act as warrant agent and the
terms of the paper Definitive Certificate so issued shall exclusively govern in respect thereof.
2.1.3. Beneficial Owner;
Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent shall deem and treat
the person in whose name that Warrant shall be registered on the Warrant Register (the “Holder”) as the absolute owner
of such Warrant for purposes of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall
be affected by any notice to the contrary. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Warrant Agent
or any agent of the Company or the Warrant Agent from giving effect to any written certification, proxy or other authorization furnished
by DTC governing the exercise of the rights of a holder of a beneficial interest in any Warrant. The rights of beneficial owners in a
Warrant evidenced by the Global Certificate shall be exercised by the Holder or a Participant through the DTC system, except to the extent
set forth herein or in the Global Certificate.
2.1.4. Execution. The
Warrant Certificates shall be executed on behalf of the Company by any authorized officer of the Company (an “Authorized Officer”),
which need not be the same authorized signatory for all of the Warrant Certificates, either manually or by facsimile signature. The Warrant
Certificates shall be countersigned by an authorized signatory of the Warrant Agent, which need not be the same signatory for all of the
Warrant Certificates, and no Warrant Certificate shall be valid for any purpose unless so countersigned. In case any Authorized Officer
of the Company that signed any of the Warrant Certificates ceases to be an Authorized Officer of the Company before countersignature by
the Warrant Agent and issuance and delivery by the Company, such Warrant Certificates, nevertheless, may be countersigned by the Warrant
Agent, issued and delivered with the same force and effect as though the person who signed such Warrant Certificates had not ceased to
be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date
of the execution of such Warrant Certificate, shall be an Authorized Officer of the Company authorized to sign such Warrant Certificate,
although at the date of the execution of this Warrant Agreement any such person was not such an Authorized Officer.
2.1.5. Registration of Transfer.
Subject to the provisions of the Warrants, at any time at or prior to the Termination Date (as defined below), a transfer of any Warrants
may be registered and any Warrant Certificate or Warrant Certificates may be split up, combined or exchanged for another Warrant Certificate
or Warrant Certificates evidencing the same number of Warrants as the Warrant Certificate or Warrant Certificates surrendered. Any Holder
desiring to register the transfer of Warrants or to split up, combine or exchange any Warrant Certificate shall make such request in writing
delivered to the Warrant Agent, and shall surrender to the Warrant Agent the Warrant Certificate or Warrant Certificates evidencing the
Warrants the transfer of which is to be registered or that is or are to be split up, combined or exchanged and, in the case of registration
of transfer, shall provide a signature guarantee. Thereupon, the Warrant Agent shall countersign and deliver to the person entitled thereto
a Warrant Certificate or Warrant Certificates, as the case may be, as so requested. The Company and the Warrant Agent may require payment,
by the Holder requesting a registration of transfer of Warrants or a split-up, combination or exchange of a Warrant Certificate (but,
for purposes of clarity, not upon the exercise of the Warrants and issuance of Warrant Shares to the Holder), of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with such registration of transfer, split-up, combination or exchange,
together with reimbursement to the Company and the Warrant Agent of all reasonable expenses incidental thereto.
2.1.6. Loss, Theft and Mutilation
of Warrant Certificates. Upon receipt by the Company and the Warrant Agent of evidence reasonably satisfactory to them of the loss,
theft, destruction or mutilation of a Warrant Certificate, and, in case of loss, theft or destruction, of indemnity or security in customary
form and amount, and reimbursement to the Company and the Warrant Agent of all reasonable expenses incidental thereto, and upon surrender
to the Warrant Agent and cancellation of the Warrant Certificate if mutilated, the Warrant Agent shall, on behalf of the Company, countersign
and deliver a new Warrant Certificate of like tenor to the Holder in lieu of the Warrant Certificate so lost, stolen, destroyed or mutilated.
The Warrant Agent may charge the Holder an administrative fee for processing the replacement of lost Warrant Certificates, which shall
be charged only once in instances where a single surety bond obtained covers multiple certificates. The Warrant Agent may receive compensation
from the surety companies or surety agents for administrative services provided to them.
2.1.7. Proxies. The Holder
of a Warrant may grant proxies or otherwise authorize any person, including the Participants and beneficial holders that may own interests
through the Participants, to take any action that a Holder is entitled to take under this Warrant Agreement or the Warrants; provided,
however, that at all times that Warrants are evidenced by a Global Certificate, exercise of those Warrants shall be effected on
their behalf by Participants through DTC in accordance the procedures administered by DTC.
3. Terms and Exercise of Warrants.
3.1. Exercise Price.
Each Warrant shall entitle the Holder, subject to the provisions of the applicable Warrant Certificate and of this Warrant Agreement,
to purchase from the Company the number of shares of Common Stock stated therein, at the exercise price provided in the applicable Warrant
Certificate, subject to the subsequent adjustments provided by Section 3 of the Warrant Certificates. The term “Exercise
Price” as used in this Warrant Agreement refers to the price per share at which shares of Common Stock may be purchased at the
time a Warrant is exercised as provided in the applicable Warrant Certificate.
3.2. Duration of Warrants.
The Warrants may be exercised only during the period (“Exercise Period”) commencing on the Initial Exercise Date as
defined in the applicable Warrant Certificate and ending on the Termination Date. For purposes of this Warrant Agreement, the “Termination
Date” shall have the meaning set forth in the applicable Warrant Certificate. Each Warrant not exercised on or before the Termination
Date shall become void, and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease at the close
of business on the Termination Date.
3.3. Exercise of Warrants.
3.3.1. Exercise and Payment.
(a) Subject to the provisions of this Warrant Agreement, a Holder (or a Participant or a designee of a Participant acting on behalf
of a Holder) may exercise Warrants by delivering to the Warrant Agent, a duly executed facsimile copy or PDF copy submitted by e-mail
(or e-mail attachment) of the Notice of Exercise in the form annexed to the Warrant Certificate. In the case of the Holder of a Global
Certificate, the Holder shall deliver the executed Notice of Exercise and payment of the Exercise Price pursuant to Section 2(a) and
Section 2(b) of the Warrant Certificates (other than in the case of a Cashless Exercise). Notwithstanding any other provision
in this Warrant Agreement, a holder whose interest in a Warrant is a beneficial interest in a Global Certificate held in book-entry form
through the DTC (or another established clearing corporation performing similar functions), shall effect exercises by delivering to the
DTC (or such other clearing corporation, as applicable) the appropriate instruction form for exercise, complying with the procedures to
effect exercise that are required by the DTC (or such other clearing corporation, as applicable). The Company acknowledges that the bank
accounts maintained by the Warrant Agent in connection with the services provided under this Warrant Agreement will be in its name and
that the Warrant Agent may receive investment earnings in connection with the investment at Warrant Agent risk and for its benefit of
funds held in those accounts from time to time. Neither the Company nor the Holders will receive interest on any deposits or Exercise
Price. The “Exercise Date” will be the date on which the materials in the foregoing sentence are received by the Warrant
Agent (if by 5:00 P.M., New York City time), or the following Trading Day (if after 5:00 P.M., New York City time), regardless of any
earlier date written on the materials. If the materials discussed in this Section 3.3.1 are received or deemed to be received after
the Termination Date, the exercise thereof will be null and void and any funds delivered to the Company will be returned to the Holder
or Participant, as the case may be, as soon as practicable. In no event will interest accrue on any funds deposited with the Company in
respect of an exercise or attempted exercise of the Warrants. (b) The Common Warrants shall cease to be exercisable and shall terminate
and become void and callable as set forth in the applicable Warrant Certificate.
3.3.2. Issuance of Warrant Shares.
(a) The Warrant
Agent shall, by 11:00 a.m., New York City time, on the Trading Day following the date of exercise of any Warrant, advise the Company and
the transfer agent and registrar for the Company’s Common Stock (the “Transfer Agent”), in respect of (i) the
number of Warrant Shares indicated on the Notice of Exercise as issuable upon such exercise with respect to such exercised Warrants, (ii) the
instructions of the Holder or Participant, as the case may be, provided to the Warrant Agent with respect to the delivery of the Warrant
Shares and the number of Warrants that remain outstanding after such exercise and (iii) such other information as the Company or
the Transfer Agent shall reasonably request.
(b) Upon the
Warrant Agent’s receipt, at or prior to the Close of Business on the Termination Date set forth in a Warrant Certificate, of the
executed Notice of Exercise, accompanied by payment of the Exercise Price pursuant to Section 2(b) of the Warrant Certificate
(other than in the case of a Cashless Exercise), the Warrant Agent shall cause the Warrant Shares underlying such Warrant to be delivered
to or upon the order of the Holder of such Warrant, registered in such name or names as may be designated by such Holder, no later than
the Warrant Share Delivery Date. If the Company is then a participant in the DWAC 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 Holder or (B) the Warrant is being
exercised via Cashless Exercise, then the certificates for Warrant Shares shall be transmitted by the Warrant Agent to the Holder.
3.3.3. Valid Issuance.
All Warrant Shares issued by the Company upon the proper exercise of a Warrant in conformity with this Warrant Agreement shall be validly
issued, fully paid and non-assessable.
3.3.4. No Fractional Shares
or Scrip. No fractional Warrant Shares or scrip representing fractional shares shall be issued upon the exercise of the Warrant. As
to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election,
either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or
round up to the next whole share.
3.3.5. Charges, Taxes, and
Expenses. Issuance of Warrant Shares shall be made without charge to a 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 a Holder or in such name or names as may be directed by a Holder; provided, however, that in the event
that Warrant Shares are to be issued in a name other than the name of a Holder, the Warrant, when surrendered for exercise, shall be accompanied
by the Assignment Form attached to the Warrant 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. The Company shall pay all Transfer Agent fees required
for same-day processing of any Notice of Exercise and all fees to DTC (or another established clearing corporation performing similar
functions) required for same-day electronic delivery of the Warrant Shares.
3.3.6. Date of Issuance.
The Company will treat an exercising Holder as a beneficial owner of the Warrant Shares as of the date of exercise of any Warrant, except
that, if such date of exercise is a date when the stock transfer books of the Company are closed, such person shall be deemed to have
become the holder of such shares at the open of business on the next succeeding date on which the stock transfer books are open.
3.3.7. Cashless Exercise
Under Certain Circumstances. The Company shall provide to the Warrant Agent and each Holder prompt written notice of any time that
there is no effective registration statement covering the Warrants and the Warrant Shares thereunder.
Upon receipt of a Notice of
Exercise for a cashless exercise, the Warrant Agent will promptly deliver a copy of the Notice of Exercise to the Company to confirm the
number of Warrant Shares issuable in connection with the cashless exercise. The Company shall promptly calculate and transmit to the Warrant
Agent in a written notice, and the Warrant Agent shall have no duty, responsibility or obligation under this section to calculate, the
number of Warrant Shares issuable in connection with any cashless exercise. The Warrant Agent shall be entitled to rely conclusively on
any such written notice provided by the Company, and the Warrant Agent shall not be liable for any action taken, suffered or omitted to
be taken by it in accordance with such written instructions or pursuant to this Warrant Agreement.
3.3.8. Disputes. In the
case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the number of Warrant Shares issuable
in connection with any exercise, the Company shall promptly deliver to the Holder the number of Warrant Shares that are not disputed.
3.3.9. Beneficial Ownership
Limitation. A Holder shall not have the right to exercise any Warrants to the extent that after giving effect to the issuance of Warrant
Shares after exercise as set forth on the applicable Notice of Exercise, such Holder or a person holding through such Holder, and any
other persons acting as a group together with that Holder or person or any of that Holder’s or person’s Affiliates), would
beneficially own in excess of the Beneficial Ownership Limitation (as that term is defined in the Warrant) pursuant to Section 2(e) of
the Warrant Certificates.
4. Adjustments. The
Exercise Price, the number of shares covered by each Warrant and the number of Warrants outstanding are subject to adjustment from time
to time as provided in Section 3 of the Warrant Certificate. All Warrants originally issued by the Company subsequent to any adjustment
made to the Exercise Price pursuant to the Warrant shall evidence the right to purchase, at the adjusted Exercise Price, the number of
shares of Common Stock purchasable from time to time hereunder upon exercise of the Warrants, all subject to further adjustment as provided
herein. Whenever the Exercise Price or the number of shares of Common Stock issuable upon the exercise of each Warrant is adjusted as
provided in this Section 4, the Company shall (a) promptly prepare a certificate setting forth the Exercise Price of each Warrant
as so adjusted, and a brief statement of the facts accounting for such adjustment, (b) promptly file with the Warrant Agent and with
the Transfer Agent a copy of such certificate and (c) instruct the Warrant Agent to send a brief summary thereof to each Holder of
a Warrant.
5.
Restrictive Legends; Fractional Warrants. In the event that a Warrant Certificate surrendered for transfer bears a restrictive
legend, the Warrant Agent shall not register that transfer until the Warrant Agent has received an opinion of counsel for the Company
stating that such transfer may be made and indicating whether the Warrants must also bear a restrictive legend upon that transfer. The
Company shall not issue fractions of Warrants or distribute a Global Certificate or Warrant Certificates that evidence fractional Warrants.
Whenever any fractional Warrant would otherwise be required to be issued or distributed, the actual issuance or distribution shall reflect
a rounding of such fraction either up or down to the nearest whole Warrant. The Warrant Agent shall not be required to effect any registration
of transfer or exchange which will result in the transfer of or delivery of a Warrant Certificate for a fraction of a Warrant. The Company
shall not issue fractions of shares of Common Stock upon exercise of Warrants or distribute stock certificates that evidence fractional
shares of Common Stock. Whenever any fraction of a share of Common Stock would otherwise be required to be issued or distributed, the
actual issuance or distribution in respect thereof shall be made in accordance with Section 2(d)(v) of the Warrant Certificates.
6. Other Provisions Relating
to Rights of Holders of Warrants.
6.1. No Rights as Shareholder.
Except as otherwise specifically provided herein and in accordance with Section 5(a) of the Warrant Certificates, a Holder,
solely in its capacity as a holder of Warrants, shall not be entitled to vote or receive dividends or be deemed the holder of share capital
of the Company for any purpose, nor shall anything contained in this Warrant Agreement be construed to confer upon a Holder, solely in
its capacity as the registered holder of Warrants, any of the rights of a shareholder of the Company or any right to vote, give or withhold
consent to any corporate action (whether any reorganization, issue of stock, reclassification of share capital, consolidation, merger,
conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights or rights to participate in new issues
of shares, or otherwise, prior to the issuance to the Holder of the Warrant Shares which it is then entitled to receive upon the due exercise
of Warrants.
6.2. Reservation of Common
Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Common Stock pursuant
to Section 5(d) of the Warrant Certificates.
7. Concerning the Warrant
Agent and Other Matters.
7.1. Any instructions given
to the Warrant Agent orally, as permitted by any provision of this Warrant Agreement, shall be confirmed in writing by the Company as
soon as practicable. The Warrant Agent shall not be liable or responsible and shall be fully authorized and protected for acting, or failing
to act, in accordance with any oral instructions which do not conform with the written confirmation received in accordance with this Section 7.1.
7.2. (a) Whether or not
any Warrants are exercised, for the Warrant Agent’s services as agent for the Company hereunder, the Company shall pay to the Warrant
Agent such fees as may be separately agreed between the Company and Warrant Agent and the Warrant Agent’s out of pocket expenses
in connection with this Warrant Agreement, including, without limitation, the reasonable fees and expenses of the Warrant Agent’s
counsel. While the Warrant Agent endeavors to maintain out-of-pocket charges (both internal and external) at competitive rates, these
charges may not reflect actual out-of-pocket costs, and may include handling charges to cover internal processing and use of the Warrant
Agent’s billing systems. (b) All amounts owed by the Company to the Warrant Agent under this Warrant Agreement are due within
30 days of the invoice date. Delinquent payments are subject to a late payment charge of one and one-half percent (1.5%) per month commencing
45 days from the invoice date. The Company agrees to reimburse the Warrant Agent for any reasonable attorney’s fees and any other
costs associated with collecting delinquent payments. (c) No provision of this Warrant Agreement shall require Warrant Agent to expend
or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Warrant Agreement
or in the exercise of its rights.
7.3.
As agent for the Company hereunder the Warrant Agent: (a) shall have no duties or obligations other than those specifically set forth
herein or as may subsequently be agreed to in writing by the Warrant Agent and the Company; (b) shall be regarded as making no representations
and having no responsibilities as to the validity, sufficiency, value, or genuineness of the Warrants or any Warrant Shares; (c) shall
not be obligated to take any legal action hereunder; if, however, the Warrant Agent determines to take any legal action hereunder, and
where the taking of such action might, in its judgment, subject or expose it to any expense or liability it shall not be required to act
unless it has been furnished with an indemnity reasonably satisfactory to it; (d) may rely on and shall be fully authorized and protected
in acting or failing to act upon any certificate, instrument, opinion, notice, letter, telegram, telex, facsimile transmission or other
document or security delivered to the Warrant Agent and believed by it to be genuine and to have been signed by the proper party or parties;
(e) shall not be liable or responsible for any recital or statement contained in the Registration Statement or any other documents
relating thereto; (f) shall not be liable or responsible for any failure on the part of the Company to comply with any of its covenants
and obligations relating to the Warrants, including without limitation obligations under applicable securities laws; (g) may rely
on and shall be fully authorized and protected in acting or failing to act upon the written, telephonic or oral instructions with respect
to any matter relating to its duties as Warrant Agent covered by this Warrant Agreement (or supplementing or qualifying any such actions)
of officers of the Company, and is hereby authorized and directed to accept instructions with respect to the performance of its duties
hereunder from the Company or counsel to the Company, and may apply to the Company, for advice or instructions in connection with the
Warrant Agent’s duties hereunder, and the Warrant Agent shall not be liable for any delay in acting while waiting for those instructions;
any applications by the Warrant Agent for written instructions from the Company may, at the option of the Agent, set forth in writing
any action proposed to be taken or omitted by the Warrant Agent under this Warrant Agreement and the date on or after which such action
shall be taken or such omission shall be effective; the Warrant Agent shall not be liable for any action taken by, or omission of, the
Warrant Agent in accordance with a proposal included in such application on or after the date specified in such application (which date
shall not be less than five (5) Business Days after the date such application is sent to the Company, unless the Company shall have
consented in writing to any earlier date) unless prior to taking any such action, the Warrant Agent shall have received written instructions
in response to such application specifying the action to be taken or omitted; (h) may consult with counsel satisfactory to the Warrant
Agent, including its in-house counsel, and the advice of such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered, or omitted by it hereunder in good faith and in accordance with the advice of such counsel; (i) may
perform any of its duties hereunder either directly or by or through nominees, correspondents, designees, or subagents, and it shall not
be liable or responsible for any misconduct or negligence on the part of any nominee, correspondent, designee, or subagent appointed with
reasonable care by it in connection with this Warrant Agreement; (j) is not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person; and (k) shall not be required hereunder to comply with the laws or regulations
of any country other than the United States of America or any political subdivision thereof.
7.4. (a) In the absence
of gross negligence or willful or illegal misconduct on its part, the Warrant Agent shall not be liable for any action taken, suffered,
or omitted by it or for any error of judgment made by it in the performance of its duties under this Warrant Agreement. Anything in this
Warrant Agreement to the contrary notwithstanding, in no event shall Warrant Agent be liable for special, indirect, incidental, consequential
or punitive losses or damages of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised
of the possibility of such losses or damages and regardless of the form of action. Any liability of the Warrant Agent will be limited
in the aggregate to the amount of fees paid by the Company hereunder. The Warrant Agent shall not be liable for any failures, delays or
losses, arising directly or indirectly out of conditions beyond its reasonable control including, but not limited to, acts of government,
exchange or market ruling, suspension of trading, work stoppages or labor disputes, fires, civil disobedience, riots, rebellions,
storms, electrical or mechanical failure, computer hardware or software failure, communications facilities failures including telephone
failure, war, terrorism, insurrection, earthquakes, floods, acts of God or similar occurrences. (b) In the event any question or
dispute arises with respect to the proper interpretation of the Warrants or the Warrant Agent’s duties under this Warrant Agreement
or the rights of the Company or of any Holder, the Warrant Agent shall not be required to act and shall not be held liable or responsible
for its refusal to act until the question or dispute has been judicially settled (and, if appropriate, it may file a suit in interpleader
or for a declaratory judgment for such purpose) by final judgment rendered by a court of competent jurisdiction, binding on all persons
interested in the matter which is no longer subject to review or appeal, or settled by a written document in form and substance satisfactory
to Warrant Agent and executed by the Company and each such Holder. In addition, the Warrant Agent may require for such purpose, but shall
not be obligated to require, the execution of such written settlement by all the Holders and all other persons that may have an interest
in the settlement.
7.5. The Company covenants
to indemnify the Warrant Agent and hold it harmless from and against any loss, liability, claim or expense (“Loss”)
arising out of or in connection with the Warrant Agent’s duties under this Warrant Agreement, including the costs and expenses of
defending itself against any Loss, unless such Loss shall have been determined by a court of competent jurisdiction to be a result of
the Warrant Agent’s gross negligence or willful misconduct.
7.6. Unless terminated earlier
by the parties hereto, this Warrant Agreement shall terminate 90 days after the earlier of the Termination Date and the date on which
no Warrants remain outstanding (the “Agreement Termination Date”). On the Business Day following the Termination Date,
the Agent shall deliver to the Company any entitlements, if any, held by the Warrant Agent under this Warrant Agreement. The Agent’s
right to be reimbursed for fees, charges and out-of-pocket expenses as provided in this Section 7 shall survive the termination of
this Warrant Agreement.
7.7. If any provision of this
Warrant Agreement shall be held illegal, invalid, or unenforceable by any court, this Warrant Agreement shall be construed and enforced
as if such provision had not been contained herein and shall be deemed an agreement among the parties to it to the full extent permitted
by applicable law.
7.8. The Company represents
and warrants that: (a) it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation; (b) the
offer and sale of the Warrants and the execution, delivery and performance of all transactions contemplated thereby (including this Warrant
Agreement) have been duly authorized by all necessary corporate action and will not result in a breach of or constitute a default under
the articles of association, bylaws or any similar document of the Company or any indenture, agreement or instrument to which it is a
party or is bound; (c) this Warrant Agreement has been duly executed and delivered by the Company and constitutes the legal, valid,
binding and enforceable obligation of the Company; (d) the Warrants will comply in all material respects with all applicable requirements
of law; and (e) to the best of its knowledge, there is no litigation pending or threatened as of the date hereof in connection with
the offering of the Warrants.
7.9. In the event of inconsistency
between this Warrant Agreement and the descriptions in the Registration Statement, as they may from time to time be amended, the terms
of this Warrant Agreement shall control. Notwithstanding anything to the contrary contained in this Warrant Agreement, in the event of
inconsistency between any provision in this Warrant Agreement and any provision in a Definitive Certificate, as it may from time to time
be amended, the terms of such Definitive Certificate shall control.
7.10. Set forth in Exhibit C
hereto is a list of the names and specimen signatures of the persons authorized to act for the Company under this Warrant Agreement (the
“Authorized Representatives”). The Company shall, from time to time, certify to the Warrant Agent the names and signatures
of any other persons authorized to act for the Company under this Warrant Agreement.
7.11. Except as expressly
set forth elsewhere in this Warrant Agreement, all notices, instructions and communications under this Warrant Agreement shall be in writing,
shall be effective upon receipt and shall be addressed, if to the Company, to its address set forth beneath its signature to this Warrant
Agreement, or, if to the Warrant Agent, to VStock Transfer, LLC 18 Lafayette Place, Woodmere, New York 11598, or to such other address
of which a party hereto has notified the other party.
7.12. (a) This Warrant
Agreement shall be governed by and construed in accordance with the laws of the State of New York. All actions and proceedings relating
to or arising from, directly or indirectly, this Warrant Agreement may be litigated in courts located within the Borough of Manhattan
in the City and State of New York. The Company hereby submits to the personal jurisdiction of such courts and consents that any service
of process may be made by certified or registered mail, return receipt requested, directed to the Company at its address last specified
for notices hereunder. Each of the parties hereto hereby waives the right to a trial by jury in any action or proceeding arising out of
or relating to this Warrant Agreement. (b) This Warrant Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the parties hereto. This Warrant Agreement may not be assigned, or otherwise transferred, in whole or in part, by either
party without the prior written consent of the other party, which the other party will not unreasonably withhold, condition or delay;
except that (i) consent is not required for an assignment or delegation of duties by the Warrant Agent to any affiliate of Warrant
Agent and (ii) any reorganization, merger, consolidation, sale of assets or other form of business combination by the Warrant Agent
or the Company shall not be deemed to constitute an assignment of this Warrant Agreement. (c) No provision of this Warrant Agreement
may be amended, modified or waived, except in a written document signed by both parties. The Company and the Warrant Agent may amend or
supplement this Warrant Agreement without the consent of any Holder for the purpose of curing any ambiguity, or curing, correcting or
supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions
arising under this Warrant Agreement as the parties may deem necessary or desirable and that the parties determine, in good faith, shall
not adversely affect the interest of the Holders. All other amendments and supplements shall require the vote or written consent of Holders
of at least 50.1% of the then outstanding Warrants, provided that adjustments may be made to the Warrant terms and rights in accordance
with Section 4 without the consent of the Holders.
7.13. Payment of Taxes.
The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect
of the issuance or delivery of Warrant Shares upon the exercise of Warrants, but the Company may, pursuant to the terms of the Warrant,
require the Holders to pay any transfer taxes in respect of the Warrants or such shares. The Warrant Agent may refrain from registering
any transfer of Warrants or any delivery of any Warrant Shares unless or until the persons requesting the registration or issuance shall
have paid to the Warrant Agent for the account of the Company the amount of such tax or charge, if any, or shall have established to the
reasonable satisfaction of the Company and the Warrant Agent that such tax or charge, if any, has been paid.
7.14. Resignation of Warrant
Agent.
7.14.1. Appointment of Successor
Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further
duties and liabilities hereunder after giving thirty (30) days’ notice in writing to the Company and the Holders of the Warrants,
or such shorter period of time agreed to by the Company. The Company may terminate the services of the Warrant Agent, or any successor
Warrant Agent, after giving thirty (30) days’ notice in writing to the Warrant Agent or successor Warrant Agent and the Holders
of the Warrants, or such shorter period of time as agreed. If the office of the Warrant Agent becomes vacant by resignation, termination
or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the
Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity
by the Warrant Agent, then the Warrant Agent or any Holder may apply to any court of competent jurisdiction for the appointment of a successor
Warrant Agent at the Company’s cost. Pending appointment of a successor to such Warrant Agent, either by the Company or by such
a court, the duties of the Warrant Agent shall be carried out by the Company. Any successor Warrant Agent (but not including the initial
Warrant Agent), whether appointed by the Company or by such court, shall be a person organized and existing under the laws of any state
of the United States of America, in good standing, and authorized under such laws to exercise corporate trust powers and subject to supervision
or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers,
rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent
hereunder, without any further act or deed, and except for executing and delivering documents as provided in the sentence that follows,
the predecessor Warrant Agent shall have no further duties, obligations, responsibilities or liabilities hereunder, but shall be entitled
to all rights that survive the termination of this Warrant Agreement and the resignation or removal of the Warrant Agent, including but
not limited to its right to indemnity hereunder. If for any reason it becomes necessary or appropriate or at the request of the Company,
the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant
Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent
the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in
and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
7.14.2. Notice of Successor
Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor
Warrant Agent and the Transfer Agent not later than the effective date of any such appointment.
7.14.3. Merger or Consolidation
of Warrant Agent. Any person into which the Warrant Agent may be merged or converted or with which it may be consolidated or any person
resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party or any person succeeding to the shareowner
services business of the Warrant Agent or any successor Warrant Agent shall be the successor Warrant Agent under this Warrant Agreement,
without any further act or deed. For purposes of this Warrant Agreement, “person” shall mean any individual, firm, corporation,
partnership, limited liability company, joint venture, association, trust or other entity, and shall include any successor (by merger
or otherwise) thereof or thereto.
8.
Miscellaneous Provisions.
8.1. Persons Having Rights
under this Warrant Agreement. Nothing in this Warrant Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the
Holders any right, remedy, or claim under or by reason of this Warrant Agreement or of any covenant, condition, stipulation, promise,
or agreement hereof.
8.2. Examination of the
Warrant Agreement. A copy of this Warrant Agreement shall be available at all reasonable times at the office of the Warrant Agent
designated for such purpose for inspection by any Holder. Prior to such inspection, the Warrant Agent may require any such holder to provide
reasonable evidence of its interest in the Warrants.
8.3. Counterparts.
This Warrant Agreement may be executed in any number of original, facsimile or electronic counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
8.4. Effect of Headings.
The Section headings herein are for convenience only and are not part of this Warrant Agreement and shall not affect the interpretation
thereof.
9. Certain Definitions.
As used herein, the following terms shall have the following meanings:
(a) “Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
(b) “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.
(c) “Trading
Day” means any day on which the Common Stock is traded on the Trading Market.
(d) “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).
(e) “Warrant
Share Delivery Date” means 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.
[Signature Page to Follow]
IN WITNESS WHEREOF, this Warrant
Agency Agreement has been duly executed by the parties hereto as of the day and year first above written.
|
WISA TECHNOLOGIES, INC. |
|
|
|
|
By: |
|
|
Name: |
Brett Moyer |
|
Title: |
Chief Executive Officer |
|
|
|
|
VSTOCK TRANSFER, LLC |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
|
ANNEX A1
WARRANT CERTIFICATE REQUEST NOTICE
To: VStock Transfer, LLC, as Warrant
Agent for WiSA Technologies, Inc. (the “Company”)
The undersigned Holder of Common Stock
Purchase Warrants (“Warrants”) in the form of Global Certificates issued by the Company hereby elects to receive a Definitive
Certificate evidencing the Warrants held by the Holder as specified below:
|
1. |
Name of Holder of Warrants in form of Global Certificates:
______________________________________________________________ |
|
2. |
Name of Holder in Definitive Certificate (if different from name of
Holder of Warrants in form of Global Certificates):
_______________________________ |
|
3. |
Number of Warrants in name of Holder in form of Global Certificates: ______________________________________________________________ |
|
4. |
Number of Warrants for which Definitive Certificate shall be issued: ______________________________________________________________ |
|
5. |
Number of Warrants in name of Holder in form of Global Certificates after issuance of Definitive Certificate, if any: ___________ |
|
6. |
Definitive Certificate shall be delivered to the following address: |
The undersigned hereby acknowledges
and agrees that, in connection with this Warrant Exchange and the issuance of the Definitive Certificate, the Holder is deemed to have
surrendered the number of Warrants in form of Global Certificates in the name of the Holder equal to the number of Warrants evidenced
by the Definitive Certificate.
[SIGNATURE
OF HOLDER]
Name of Investing Entity: |
|
____________________________________________________ |
|
Signature of Authorized Signatory of Investing Entity: |
|
____________________________________________________ |
|
Name of Authorized Signatory: |
|
____________________________________________________ |
|
Title of Authorized Signatory: |
|
____________________________________________________ |
|
Date: ________________________________________________ |
ANNEX A2
WARRANT CERTIFICATE REQUEST NOTICE
To: VStock Transfer, LLC, as Warrant
Agent for WiSA Technologies, Inc. (the “Company”)
The undersigned Holder of Pre-Funded
Warrants (“Warrants”) in the form of Global Certificates issued by the Company hereby elects to receive a Definitive Certificate
evidencing the Warrants held by the Holder as specified below:
|
1. |
Name of Holder of Warrants in form of Global Certificates:
______________________________________________________________ |
|
2. |
Name of Holder in Definitive Certificate (if different from name of
Holder of Warrants in form of Global Certificates):
_______________________________ |
|
3. |
Number of Warrants in name of Holder in form of Global Certificates: ______________________________________________________________ |
|
4. |
Number of Warrants for which Definitive Certificate shall be issued: ______________________________________________________________ |
|
5. |
Number of Warrants in name of Holder in form of Global Certificates after issuance of Definitive Certificate, if any: ___________ |
|
6. |
Definitive Certificate shall be delivered to the following address: |
The undersigned hereby acknowledges
and agrees that, in connection with this Warrant Exchange and the issuance of the Definitive Certificate, the Holder is deemed to have
surrendered the number of Warrants in form of Global Certificates in the name of the Holder equal to the number of Warrants evidenced
by the Definitive Certificate.
[SIGNATURE
OF HOLDER]
Name of Investing Entity: |
|
____________________________________________________ |
|
Signature of Authorized Signatory of Investing Entity: |
|
____________________________________________________ |
|
Name of Authorized Signatory: |
|
____________________________________________________ |
|
Title of Authorized Signatory: |
|
____________________________________________________ |
|
Date: ________________________________________________ |
EXHIBIT A1
[FORM OF GLOBAL WARRANT CERTIFICATE OF
COMMON STOCK PURCHASE WARRANT]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Certificate No.: 1 |
CUSIP No.: [__] |
Number of Warrants: [____] |
Issue Date: [_______] |
(ATTACHED)
EXHIBIT A2
[FORM OF GLOBAL WARRANT CERTIFICATE OF
PRE-FUNDED WARRANT]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Certificate No.: 1 |
CUSIP No.: [__] |
Number of Warrants: [____] |
Issue Date: [_______] |
(ATTACHED)
EXHIBIT B1
FORM OF COMMON STOCK PURCHASE WARRANT
(ATTACHED)
EXHIBIT B2
FORM OF PRE-FUNDED WARRANT
(ATTACHED)
EXHIBIT C
AUTHORIZED REPRESENTATIVES
Name |
|
Title |
|
Signature |
Brett Moyer |
|
Chief Executive Officer |
|
|
Exhibit 10.81
VOTING AGREEMENT
This
Voting Agreement (this “Voting Agreement”) is being delivered to you in connection with an understanding by and between
WiSA Technologies, Inc. a Delaware corporation (the “Company”), and the person or persons named on the signature pages
hereto.
Reference
is hereby made to the public offering (the “Offering”) of securities of the Company, including units comprised, in
part, of shares of common stock, par value $0.0001 per share, of the Company (the “Common Stock”), pursuant to the
registration statement on Form S-1, as amended (File No. 333-276631) (“Registration Statement”). The Company is requiring
a voting agreement in substance the same as this Voting Agreement from all purchasers that purchase in excess of $100,000 of securities
in the Offering (each a “Holder” and collectively, the “Holders”).
The
Holder agrees to vote all shares of Common Stock it beneficially owns on and after February [*], 2024, including shares of Common Stock,
if any, purchased in the Offering, with respect to all of the proposals presented by the Company to the stockholders of the Company at
the Company’s next meeting of its stockholders, including at every adjournment or postponement thereof, or any subsequent meeting
of its stockholders duly called for the same or similar purposes. For clarity, the Holder’s agreement to vote its shares of Common
Stock in accordance with the immediately preceding sentence, does not require the Holder to vote its shares for or against any particular
proposal or proposals, whether or not such proposal or proposals are recommended by the Company’s board of directors.
No
material, non-public information has been provided to the Holder by the Company or any of its subsidiaries or any of their respective
officers, directors, employees or agents in connection with the transactions contemplated hereby. As of the date hereof, the Company acknowledges
and agrees that any and all confidentiality or similar obligations under any agreement, if any, whether written or oral, between the Company,
any of its subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and the Holder
or any of its affiliates, on the other hand, with respect to this Voting Agreement and the transactions contemplated hereby shall terminate.
Notwithstanding anything contained in this Voting Agreement to the contrary and without implication that the contrary would otherwise
be true, the Company expressly acknowledges and agrees that the Holder shall not have (unless expressly agreed to by the Holder after
the date hereof in a written definitive and binding agreement executed by the Company and the Holder), any duty of confidentiality with
respect to, or a duty to the Company not to trade on the basis of, any material, non-public information regarding the Company or any of
its Subsidiaries.
Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Voting Agreement must be
in writing and shall be delivered to the Holder at the e-mail address or facsimile number on the signature page hereto.
This
Voting Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all
prior negotiations, letters and understandings relating to the subject matter hereof and are fully binding on the parties hereto.
This
Voting Agreement may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one and the same instrument. This Voting Agreement may be executed and accepted by facsimile or
PDF signature and any such signature shall be of the same force and effect as an original signature.
The
terms of this Voting Agreement shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective
successors and assigns.
This
Voting Agreement may not be amended or modified except in writing signed by each of the parties hereto.
All
questions concerning the construction, validity, enforcement and interpretation of this Voting Agreement 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 hereto acknowledges that, in view of the uniqueness of the transactions contemplated by this Voting Agreement, the other party or
parties hereto will not have an adequate remedy at law for money damages in the event that this Voting Agreement has not been performed
in accordance with its terms, and therefore agrees that such other party or parties shall be entitled to seek specific enforcement of
the terms hereof in addition to any other remedy it may seek, at law or in equity.
The
obligations of the Holder under this Voting Agreement are several and not joint with the obligations of any other holder of any of the
securities issued under the Registration Statement (each, an “Other Holder”), and the Holder shall not be responsible
in any way for the performance of the obligations of any Other Holder under any such other agreement. Nothing contained in this Voting
Agreement, and no action taken by the Holder pursuant hereto, shall be deemed to constitute the Holder and Other Holders as a partnership,
an association, a joint venture or any other kind of entity, or create a presumption that the Holder and the Other Holders are in any
way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Voting Agreement and the
Company acknowledges that the Holder and the Other Holders are not acting in concert or as a group with respect to such obligations or
the transactions contemplated by this Voting Agreement or any other agreement. The Company and the Holder confirm that the Holder has
independently participated in the negotiation of the transactions contemplated hereby with the advice of its own counsel and advisors.
The Holder shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of
this Voting Agreement, and it shall not be necessary for any Other Holder to be joined as an additional party in any proceeding for such
purpose.
[The
remainder of the page is intentionally left blank]
The parties hereto have executed
this Voting Agreement as of the date first set forth above.
WISA
TECHNOLOGIES, INC.
By: |
|
|
Name: |
Brett Moyer |
|
Title: |
Chief Executive Officer |
|
|
|
|
The parties hereto have executed
this Voting Agreement as of the date first set forth above.
HOLDER
Exhibit 10.82
February [__], 2024
[INVESTOR NAME]
[ADDRESS]
[ADDRESS]
Attn:[____ ]
Re: WiSA
Technologies, Inc.
Reference
is made to that (i) certain Securities Purchase Agreement (the “Purchase Agreement”), dated as of October 16, 2023, by and
between you and WiSA Technologies, Inc. (the “Company”) entered into in connection with the offering by the Company pursuant
to the Company’s Registration Statement on Form S-1 (File No. 333- 274331), as amended, and (ii) certain warrant inducement
letter agreement, dated as of December 5, 2023, by and between you and the Company (the “Inducement Agreement”). Capitalized
terms not defined herein shall have the meanings ascribed to them in the Purchase Agreement and the Inducement Agreement, as applicable.
The Company is contemplating
a best efforts public offering (the “Offering”), for gross proceeds of up to $10,000,000, of certain securities of the Company,
pursuant to a Registration Statement on Form S-1 (File No. 333-276631), and the related transaction documents thereto.
In connection with the intended
Offering and pursuant to this Letter Agreement:
(i) The
Company hereby offers to repurchase all outstanding shares of Series B Preferred Stock of the Company held by you, as set forth on Exhibit
A hereto at a price of $100 per share of Series B Preferred Stock.
(ii) You
hereby agree to surrender all outstanding Preferred Stock Purchase Warrants currently held by you, as set forth on Exhibit A
hereto, to the Warrant Agent for cancellation immediately prior to the closing of the Offering. Upon such cancellation, you will
have no practical or legal right to the Preferred Stock Purchase Warrants as set forth on Exhibit A hereto.
(iii) The
Company and you hereby agree to amend and restate the second sentence in (e) in Annex A to the Inducement Agreement in its entirety as
follows:
“The Company
covenants that, following the Stockholder Approval Date and thereafter, during the period the New Warrant is outstanding, it shall reserve
from its duly authorized capital stock a number of shares of Common Stock for issuance of the New Warrant Shares in full.”
(iv) The
Company and you hereby agree that any future issuance of New Warrants under the Inducement Agreement will conform with the form of New
Warrant as amended on or about the same date hereof.
This Letter Agreement (a) shall be governed by
and construed in accordance with the law of the State of New York, (b) is for the exclusive benefit of the parties hereto and constitutes
the entire agreement of such parties, (c) may be modified, waived or assigned only in writing, and (d) is a negotiated document, entered
into freely among the parties upon advice of their own counsel, and it should not be construed against any of its drafters. The fact
that any term or provision of this Letter Agreement is held invalid, illegal or unenforceable as to any person in any situation in any
jurisdiction shall not affect the validity, enforceability or legality of the remaining terms or provisions hereof or the validity, enforceability
or legality of such offending term or provision in any other situation or jurisdiction or as applied to any person.
[Signature Page Follows]
If the foregoing is in accordance with your understanding,
kindly confirm your acceptance and agreement by signing in the space indicated below and by returning a partially executed copy of this
letter to the undersigned, which may be executed in identical counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same agreement.
|
Very truly yours, |
|
|
|
WISA TECHNOLOGIES, INC. |
|
|
|
By: |
|
|
|
Name: |
Brett Moyer |
|
|
Title: |
Chief Executive Officer |
AGREED AND ACCEPTED:
[HOLDER]
EXHIBIT A
Name of Holder:______________
Aggregate Repurchase Price: _________________
Number of shares of Series B Preferred Stock Currently Outstanding:_______________
Number of shares of Series B Preferred Stock to be Repurchased:_____________________
Number of Warrants Currently Outstanding:_____________________
Number of Warrants to Cancel: _________________________
Exhibit 10.83
WARRANT AMENDMENT AGREEMENT
This Warrant Amendment Agreement
(this “Agreement”), dated as of [_____], 2024, is by and between WiSA Technologies, Inc., a Delaware corporation
(the “Company”), and [__], the holder (the “Holder”) of a certain common stock purchase warrant,
dated [____], 20[__] (the “Original Warrant”).
WHEREAS,
the Holder is the beneficial owner of the Original Warrant, to purchase an aggregate of [__] shares of the Company’s common stock,
par value $0.0001 per share (“Common Stock”), at an exercise price of $0.1482 per share, which Original Warrant is
attached as Annex A hereto.
WHEREAS,
the Company and the Holders desire to amend Section 6(d) of the Original Warrant; and
WHEREAS,
the Original Warrant may be modified or amended, or the provisions thereof waived with the written consent of the Company and the Holder.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for good and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the Holder and the Company hereby agree as follows:
1. Amendment and Restatement
of Section 6(d) of the Original Warrant. The Company and the Holder hereby consent and agree that Section 6(d) of
the Original Warrant shall be amended and restated in its entirety as follows:
d) Authorized Shares. The Company covenants
that, following the Stockholder Approval 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 certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of the Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing,
the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately
prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations under this Warrant. Before taking any action which would result in an adjustment
in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations
or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
*****
3. Effect of Amendment.
Except as expressly modified by this Agreement, the Original Warrant shall remain unmodified and in full force and effect.
4.
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall
be determined in accordance with the provisions of the Original Warrant.
5. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
6. Electronic and Facsimile
Signatures. Any signature page delivered electronically or by facsimile (including without limitation transmission by .pdf) shall
be binding to the same extent as an original signature page, with regard to any agreement subject to the terms hereof or any amendment
hereto.
7. Headings. The headings
contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
[Remainder of page intentionally left blank.]
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
COMPANY:
WISA TECHNOLOGIES, INC.
By: |
|
|
|
|
Name: Brett Moyer |
|
|
|
Title: Chief Executive Officer |
|
|
|
|
|
WARRANT HOLDER: |
|
|
|
|
|
[__] |
|
|
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
Title: |
|
|
Number
of Warrant Shares Underlying
Original Warrant held: ____________ |
|
|
Annex A
Original Warrant
(attached)
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We hereby consent to the inclusion in this Amendment #1 to the Registration
Statement on Form S-1 of our report (which contains an explanatory paragraph relating to the Company’s ability to continue as a
going concern as described in Note 1 to the consolidated financial statements) dated March 16, 2023, relating to the consolidated
financial statements, which appears in the Annual Report on Form 10-K of WiSA Technologies, Inc. for the year ended December 31, 2022.
We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ BPM LLP
San Jose, California
February 5, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-1
(Form Type)
WiSA Technologies, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
Security
Type |
Security
Class Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering
Price (1)(2) |
Fee Rate |
Amount of
Registration
Fee |
Carry
Forward
Form
Type |
Carry Forward
File
Number |
Carry
Forward
Initial
Effective
Date |
Filing Fee
Previously
Paid in
Connection
with Unsold
Securities
to be
Carried
Forward |
Newly Registered Securities |
Fees to be Paid |
Equity |
Units consisting of: (3) |
Rule 457(o) |
— |
— |
$10,000,000.00 |
$0.0001476 |
$1,476.00 |
|
|
|
|
Fees to be Paid |
Equity |
(i) Common Stock, $0.0001 par value per share (4) |
— |
— |
— |
— |
— |
— |
|
|
|
|
Fees to be Paid |
Equity |
(ii) Warrants to purchase shares of Common Stock (4) |
— |
— |
— |
— |
— |
— |
|
|
|
|
Fees to be Paid |
Equity |
Pre-Funded Units consisting of: (3) |
Rule 457(o) |
— |
— |
— |
— |
— |
|
|
|
|
Fees to be Paid |
Equity |
(i) Pre-Funded Warrants to purchase shares of Common Stock (4) |
— |
— |
— |
— |
— |
— |
|
|
|
|
Fees to be Paid |
Equity |
(ii) Warrants to purchase shares of Common Stock (4) |
— |
— |
— |
— |
— |
— |
|
|
|
|
Fees to be Paid |
Equity |
Common Stock, $0.0001 par value per share, issuable upon the exercise of the Warrants |
457(o) |
— |
— |
$10,000,000.00 |
$0.0001476 |
$1,476.00 |
|
|
|
|
Fees to be Paid |
Equity |
Common Stock, $0.0001 par value per share, issuable upon the exercise of the Pre-Funded Warrants included in the Pre-Funded Units |
— |
— |
— |
— |
— |
— |
|
|
|
|
Fees Previously Paid |
— |
— |
— |
— |
— |
— |
— |
— |
|
|
|
|
Carry Forward Securities |
Carry Forward Securities |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
Total Offering Amounts |
$20,000,000.00 |
|
$2,952.00 |
|
|
|
|
Total Fees Previously Paid |
|
|
$885.60 |
|
|
|
|
Total Fee Offset |
|
|
— |
|
|
|
|
Net Fee Due |
|
|
$2,066.40 |
|
|
|
|
|
(1) |
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”). |
|
|
|
|
(2) |
Pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement shall also cover an indeterminate number of shares that may be issued and resold resulting from stock splits, stock dividends or similar transactions. |
|
|
|
|
(3) |
The proposed maximum offering price of the units proposed to be sold in the offering will be reduced on a dollar-for-dollar basis based on the offering price of any pre-funded units offered and sold in the offering, and as such the proposed aggregate maximum offering price of the units together with the pre-funded units (including shares of common stock issuable upon exercise of the pre-funded warrants), if any, is $10,000,000. |
|
(4) |
No separate fee is required pursuant to Rule 457(g) under the Securities Act. |
WiSA Technologies (NASDAQ:WISA)
Historical Stock Chart
From Aug 2024 to Sep 2024
WiSA Technologies (NASDAQ:WISA)
Historical Stock Chart
From Sep 2023 to Sep 2024