Form 8-K
8-K — Datavault AI Inc.
Accession: 0001104659-26-098494
Filed: 2026-08-19
Period: 2026-08-18
CIK: 0001682149
SIC: 7389 (SERVICES-BUSINESS SERVICES, NEC)
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Financial Statements and Exhibits
Documents
8-K — tm2623556d1_8k.htm (Primary)
EX-4.1 — EXHIBIT 4.1 (tm2623556d1_ex4-1.htm)
EX-5.1 — EXHIBIT 5.1 (tm2623556d1_ex5-1.htm)
EX-10.1 — EXHIBIT 10.1 (tm2623556d1_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2623556d1_ex10-2.htm)
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GRAPHIC (tm2623556d1_ex5-1img002.jpg)
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8-K — FORM 8-K
8-K (Primary)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or
15(d)
of the Securities Exchange Act of 1934
Date of Report (date of earliest event
reported): August 18, 2026
Datavault AI Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware
001-38608
30-1135279
(State of
incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
One Commerce Square,
2005
Market Street, Suite 2400,
Philadelphia, PA
19103
(Address of Principal Executive
Offices)
(Zip Code)
(408) - 627-4716
(Registrant’s telephone
number, including area code)
Not Applicable
(Former Name or former address if changed
from last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of
the following provisions (see General Instruction A.2. below):
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which
registered
Common Stock, par value $0.0001 per share
DVLT
The Nasdaq Capital Market
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into a Material Definitive Agreement.
Securities Purchase
Agreement
On August 18, 2026
(the “Closing Date” and the “Effective Date”), Datavault AI Inc. (the “Company”) entered into a Securities
Purchase Agreement (the “Purchase Agreement”) with Streeterville Capital, LLC, a Utah limited liability company and accredited
investor (the “Investor”), and completed the initial closing of the transactions contemplated thereby. Pursuant to the Purchase
Agreement, the Company issued and sold to the Investor (i) an unsecured convertible promissory note in the original principal amount
of $25,030,000 (the “Note”), which is convertible into shares of the Company’s common stock, par value $0.0001 per share
(the “Common Shares”), and (ii) 15,000,000 Common Shares to be used as pre-delivery shares (the “Pre-Delivery Shares”),
for an aggregate purchase price of $25,001,500, consisting of $25,000,000 for the Note and $1,500 for the Pre-Delivery Shares. The Common
Shares issuable upon conversion of, or otherwise pursuant to, the Note and any Additional Notes (as defined below) are referred to herein
as the “Conversion Shares.” Pursuant to the Purchase Agreement, the Investor also received the right to purchase from time
to time up to $25,000,000 in aggregate principal amount of additional unsecured convertible promissory notes (the “Additional Notes”),
in connection with which the Company may issue additional pre-delivery shares (the “Additional Pre-Delivery Shares”), in each
case as described below.
In connection with the
closing, the Company filed a prospectus supplement pursuant to Rule 424(b) under the Securities Act of 1933, as amended, to
the Company’s effective shelf registration statement on Form S-3 (File No. 333-294502), covering the offer and sale of
the Note, the Additional Notes, the Pre-Delivery Shares, the Additional Pre-Delivery Shares and the Conversion Shares. The Company also
established an initial reserve of 300,000,000 Common Shares for issuances of Conversion Shares under the Note and any Additional Notes
(the “Share Reserve”) and agreed to increase the Share Reserve in increments of 1,000,000 Common Shares as required under
the Purchase Agreement. The Purchase Agreement contains customary representations, warranties and covenants of the Company and the Investor.
The Note
The Note has an original
principal amount of $25,030,000 and was issued for a purchase price of $25,000,000. The additional $30,000 included in the principal amount
represents the Investor’s transaction expenses. The Note is unsecured, bears interest at a rate of 8% per annum and matures thirty
(30) months after the purchase price of the Note is delivered by the Investor to the Company.
The Investor may convert
all or any portion of the outstanding balance of the Note into Common Shares at a fixed conversion price of $1.55 per share, subject to
adjustment in accordance with the terms of the Note. In addition, during the period beginning September 1, 2026 and ending December 31,
2026, following the occurrence of a Limited Redemption Event (as defined in the Note), the Investor may convert a portion of the outstanding
balance of the Note at the Market Price (as defined below), subject to the Maximum Limited Conversion Amount (as defined in the Note).
Beginning January 1, 2027, the Investor may convert all or any portion of the outstanding balance of the Note at a conversion price
equal to 92% of the lowest daily volume-weighted average price of the Common Shares during the seven (7) Trading Days immediately
preceding the applicable conversion date (the “Market Price”), without regard to the Maximum Limited Conversion Amount. If
the outstanding balance of the Note is at least $15,000,000 on October 1, 2026, the Investor’s right to convert all or any
portion of the outstanding balance of the Note at the Market Price will commence on October 1, 2026 rather than January 1, 2027.
Each amount converted under the Note includes make-whole interest calculated as if the amount being converted had remained outstanding
through the maturity date.
Upon ten (10) Trading
Days’ prior written notice, the Company may prepay all or any portion of the outstanding balance of the Note, other than any portion
for which the Investor has delivered a conversion notice and the applicable Conversion Shares have not yet been delivered. During the
period beginning on the Effective Date and ending on the date that is ninety (90) days thereafter, the applicable prepayment amount is
equal to 110% of the portion of the outstanding balance being prepaid. On or after the ninety-first (91st) day following the Effective
Date, the applicable prepayment amount is equal to 120% of the portion of the outstanding balance being prepaid. The Company may not prepay
the Note during the first ninety (90) days following the Effective Date unless the Company has obtained the Approval (as defined below).
At any time during the
12-month period following the Closing Date, the Investor has the right, but not the obligation, to invest up to an additional $25,000,000
through the purchase of one or more Additional Notes from time to time, on the same terms and conditions as the Note (the “Reinvestment
Right”). Each Additional Note will have a new thirty (30)-month maturity date, although the dates of September 1, 2026, October 1,
2026, December 31, 2026 and January 1, 2027 set forth in the Note will remain fixed and will not be extended. Upon each exercise
of the Reinvestment Right, the Company will issue Additional Pre-Delivery Shares such that the total number of Pre-Delivery Shares issued
to the Investor equals 4.99% of the Company’s issued and outstanding Common Shares as of the applicable date. The Company has also
agreed to register the Common Shares issuable pursuant to the Additional Notes and the Additional Pre-Delivery Shares on a shelf registration
statement on Form S-3. Beginning six (6) months after the Company obtains the Approval, the Company may terminate the Reinvestment
Right upon ten (10) Trading Days’ prior written notice, subject to the Investor’s right to exercise the Reinvestment
Right during such notice period.
The Note and any Additional
Notes are subject to a beneficial ownership limitation that prohibits any conversion to the extent that, after giving effect to the conversion,
the Investor and its affiliates would beneficially own more than 9.99% of the Company’s outstanding Common Shares. In addition,
the cumulative number of Common Shares issued to the Investor pursuant to conversions of the Note, conversions in connection with the
Reinvestment Right and issuances of Pre-Delivery Shares may not exceed the limitations imposed by Nasdaq Listing Rule 5635(d) (the
“Exchange Cap”) unless and until the Company obtains stockholder approval for issuances in excess of the Exchange Cap (the
“Approval”) or the Exchange Cap is otherwise inapplicable. The Company has agreed to seek the Approval within ninety (90)
days after the Closing Date and, if the Approval is not obtained at the Company’s next stockholder meeting, to continue seeking
the Approval every ninety (90) days thereafter until it is obtained.
Voting Agreement
In connection with the
transactions contemplated by the Purchase Agreement, on August 18, 2026, the Investor and certain stockholders of the Company (each,
a “Major Stockholder” and collectively, the “Major Stockholders”) entered into a voting agreement (the “Voting
Agreement”). Pursuant to the Voting Agreement, each Major Stockholder agreed to vote all Common Shares and any shares of the Company’s
preferred stock now or hereafter held by such Major Stockholder in favor of the Approval, the issuance of Common Shares to the Investor
in excess of the Exchange Cap, and the approval of the Transaction Documents and the transactions contemplated thereby, in each instance
in which the Approval is sought. Each Major Stockholder also granted to the Investor an irrevocable proxy, coupled with an interest, to
vote all Common Shares and shares of the Company’s preferred stock held by such Major Stockholder in favor of the Approval if such
Major Stockholder fails to vote as required under the Voting Agreement. In the event any Major Stockholder fails to comply with any term
or provision of the Voting Agreement, the Investor will be entitled to liquidated damages in the amount of $25,000,000, representing the
purchase price for the Note.
The foregoing descriptions
of the Purchase Agreement, the Note and the Voting Agreement do not purport to be complete and are qualified in their entirety by reference
to the full text of such agreements, copies of which are filed as Exhibits 10.1, 4.1 and 10.2, respectively, to this Current Report on
Form 8-K (this “Form 8-K”) and are incorporated herein by reference. The legal opinion, including the related consent,
of Sullivan & Worcester LLP relating to the issuance of the Note, the Additional Notes, the Conversion Shares, the Pre-Delivery
Shares and the Additional Pre-Delivery Shares is filed as Exhibit 5.1 to this Form 8-K.
Item 2.03 Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The disclosure contained
in Item 1.01 of this Form 8-K is incorporated by reference in this Item 2.03.
Item 9.01 Financial
Statements and Exhibits.
(d) Exhibits.
Exhibit No.
Description
4.1
Convertible Promissory Note, dated August 18, 2026
5.1
Opinion of Sullivan & Worcester LLP
10.1
Securities Purchase Agreement, dated August 18, 2026
10.2
Voting Agreement, dated August 18, 2026
23.1
Consent of Sullivan & Worcester LLP (included in Exhibit 5.1)
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: August 19, 2026
DATAVAULT AI INC.
By:
/s/ Nathaniel Bradley
Name:
Nathaniel Bradley
Title:
Chief Executive Officer
EX-4.1 — EXHIBIT 4.1
EX-4.1
Filename: tm2623556d1_ex4-1.htm · Sequence: 2
Exhibit 4.1
CONVERTIBLE
PROMISSORY NOTE
August 18, 2026
U.S. $25,030,000.00
FOR VALUE RECEIVED, Datavault
AI Inc., a Delaware corporation (“Borrower”), promises to pay to Streeterville
Capital, LLC, a Utah limited liability company (“Lender”), $25,030,000.00 and any interest, fees, charges,
and late fees accrued hereunder on the date that is thirty (30) months after the Purchase Price Date (the “Maturity Date”)
in accordance with the terms set forth herein. This Convertible Promissory Note (this “Note”) is issued and made effective
as of August 18, 2026 (the “Effective Date”). This Note is issued pursuant to that certain Securities Purchase
Agreement dated August 18, 2026 between Lender and Borrower (the “Purchase Agreement”). Certain capitalized terms
used herein are defined in Attachment 1 attached hereto and incorporated herein by this reference.
Borrower agrees to pay $30,000.00
to Lender to cover Lender’s legal fees, accounting costs, due diligence, monitoring, and other transaction costs incurred in connection
with the purchase and sale of this Note (the “Transaction Expense Amount”). The Transaction Expense Amount is included
in the initial principal balance of this Note and is deemed to be fully earned and non-refundable as of the Purchase Price Date. The
purchase price for this Note shall be $25,000,000.00 (the “Purchase Price”), computed as follows: $25,030,000.00 original
principal balance, less the Transaction Expense Amount.
1. Payment;
Prepayment; Interest.
1.1. Payment.
All payments owing hereunder shall be in lawful money of the United States of America or Conversion Shares (as defined below), as provided
for herein, and delivered to Lender at the address or bank account furnished to Borrower for that purpose. All payments shall be applied
first to (a) costs of collection, if any, then to (b) fees and charges, if any, then to (c) accrued and unpaid interest,
and thereafter, to (d) principal.
1.2. Prepayment.
With ten (10) Trading Days’ prior written notice, Borrower may prepay all or any portion of the Outstanding Balance (less
such portion of the Outstanding Balance for which Borrower has received a Conversion Notice (as defined below) from Lender where the
applicable Conversion Shares have not yet been delivered). For the avoidance of doubt, during the ten (10) Trading Day prepayment
notice period Lender shall retain the right to submit Conversion Notices. If Borrower exercises its right to prepay this Note during
the period beginning on the Effective Date and ending on the date that is ninety (90) days after the Effective Date, Borrower shall make
payment to Lender of an amount in cash equal to one hundred ten percent (110%) multiplied by the portion of the Outstanding Balance Borrower
elects to prepay. If Borrower exercises its right to prepay this Note on or after the date that ninety-one (91) days after the Effective
Date, Borrower shall make payment to Lender of an amount in cash equal to one hundred twenty percent (120%) multiplied by the portion
of the Outstanding Balance Borrower elects to prepay. Borrower will lose the right to prepay this Note if: (a) an Event of Default
(as defined below) occurs hereunder; or (b) Borrower elects to prepay this Note and fails to do so on the date set forth in the
prepayment notice sent to Lender. Notwithstanding the foregoing, Borrower may not prepay this Note during the first ninety (90) days
unless Borrower has received the Approval (as defined in the Purchase Agreement).
1.3. Interest.
Interest will accrue on the Outstanding Balance at the rate of eight percent (8%) per annum beginning on the Effective Date and continuing
until this Note has been paid in full. All interest calculations hereunder shall be computed on the basis of a 360-day year comprised
of twelve (12) thirty (30) day months, shall compound daily and shall be payable in accordance with the terms of this Note.
2. Security.
This Note shall be unsecured.
3. Conversions.
3.1. Fixed
Price Conversions. Lender has the right at any time beginning on the Purchase Price Date, at its election, to convert (each instance
of conversion pursuant to Section 3 hereof is referred to herein as a “Conversion”) all or any portion of the
Outstanding Balance into fully paid and non-assessable Common Shares (“Conversion Shares”) as per the following conversion
formula: the Conversion Amount divided by the Fixed Price. Conversion notices in the form attached hereto as Exhibit A (each,
a “Conversion Notice”) may be effectively delivered to Borrower by any method set forth in the “Notices”
section of the Purchase Agreement, and all Conversions shall be cashless and not require further payment from Lender.
3.2. Market
Price Conversions.
(a) Lender
has the right at any time beginning on September 1, 2026 and ending on December 31, 2026, if at any time during such period
a Limited Redemption Event occurs, to submit a Conversion Notice in an amount up to the Maximum Limited Conversion Amount at any time
during the applicable Limited Redemption Window. The number of Conversion Shares deliverable pursuant to this Section 3.2(a) will
be calculated as per the following conversion formula: the Conversion Amount divided by the Market Price. The Market Price will be calculated
on the date the applicable Conversion Notice is submitted.
(b) Lender
has the right at any time beginning on January 1, 2027 until this Note has been repaid in full, at its election, to submit a Conversion
Notice to Borrower to convert all or any portion of the Outstanding Balance into Conversion Shares as per the following conversion formula:
the Conversion Amount divided by the Market Price. Notwithstanding the foregoing, Conversions pursuant to this Section 3.2(b) will
begin on October 1, 2026 instead of January 1, 2027 if on October 1, 2026 the Outstanding Balance is greater than or equal
to $15,000,000.00.
(c) For
the avoidance of doubt, the Conversion rights granted pursuant to this Section 3.2 are in addition to the Conversion right set forth
in Section 3.1 above
3.3. Exchange
Cap. In the event Lender delivers a Conversion Notice to Borrower and Borrower cannot issue the applicable Conversion Shares to Lender
without exceeding the Exchange Cap (as defined in the Purchase Agreement), then Borrower shall instead pay the applicable Conversion
Amount in cash within two (2) Trading Days of delivery of the Conversion Notice.
4. Trigger
Events; Events of Default; Remedies.
4.1. Trigger
Events. The following are trigger events under this Note (each, a “Trigger Event”): (a) Borrower fails to
pay any principal, interest, fees, charges, or any other amount when due and payable hereunder; (b) a receiver, trustee or other
similar official shall be appointed over Borrower or a material part of its assets and such appointment shall remain uncontested for
twenty (20) days or shall not be dismissed or discharged within sixty (60) days; (c) Borrower becomes insolvent or generally fails
to pay, or admits in writing its inability to pay, its debts as they become due; (d) Borrower makes a general assignment for the
benefit of creditors; (e) Borrower files a petition for relief under any bankruptcy, insolvency or similar law (domestic or foreign);
(f) an involuntary bankruptcy proceeding is commenced or filed against Borrower; (g) Borrower fails to timely establish and
maintain the Share Reserve (as defined in the Purchase Agreement); (h) Borrower fails to observe or perform any covenant set forth
in Section 4 or Section 10 of the Purchase Agreement; (i) the occurrence of a Fundamental Transaction without Lender’s
prior written consent; (j) Borrower receives notice from Nasdaq that the Common Shares are being entered into the delisting protocol;
(k) at any time beginning on the Purchase Price Date and ending on the date that is six (6) months from the Purchase Price
Date, Borrower fails to maintain an effective registration statement pursuant to which Lender is authorized to sell registered Conversion
Shares; (l) Borrower fails to deliver any Conversion Shares in accordance with the terms hereof for any reason; (m) Borrower
defaults or otherwise fails to observe or perform any covenant, obligation, condition or agreement of Borrower contained herein or in
any other Transaction Document (as defined in the Purchase Agreement), other than those specifically set forth in this Section 4.1
and Section 4 or Section 10 of the Purchase Agreement; (n) any representation, warranty or other statement made or furnished
by or on behalf of Borrower to Lender herein, in any Transaction Document, or otherwise in connection with the issuance of this Note
is false, incorrect, incomplete or misleading in any material respect when made or furnished; (o) Borrower effectuates a reverse
split, ratio change or other similar event with respect to its Common Shares without twenty (20) Trading Days prior written notice to
Lender; (p) any final, non-appealable money judgment, writ or similar process is entered against Borrower or any subsidiary of Borrower
or any of its property or other assets for more than $2,500,000.00, and shall remain unvacated, unbonded or unstayed for a period of
twenty (20) calendar days unless otherwise consented to by Lender; (q) Borrower fails to be DWAC Eligible; or (r) Borrower
or any subsidiary of Borrower breaches any covenant or other term or condition contained in any Other Agreements.
2
4.2. Trigger
Event Remedies. At any time following the occurrence of any Trigger Event, Lender may, at its option, increase the Outstanding Balance
by applying the Trigger Effect (subject to the limitation set forth below).
4.3. Defaults.
At any time following the occurrence of a Trigger Event, Lender may, at its option, send written notice to Borrower demanding that Borrower
cure the Trigger Event within five (5) Trading Days. If Borrower fails to cure the Trigger Event within the required five (5) Trading
Day cure period, the Trigger Event will automatically become an event of default hereunder (an “Event of Default”).
4.4. Default
Remedies. At any time and from time to time following the occurrence of any Event of Default, Lender may accelerate this Note by
written notice to Borrower, with the Outstanding Balance becoming immediately due and payable in cash at the Mandatory Default Amount.
Notwithstanding the foregoing, upon the occurrence of any Trigger Event described in clauses (b) – (f) of Section 4.1,
an Event of Default will be deemed to have occurred and the Outstanding Balance as of the date of the occurrence of such Trigger Event
shall become immediately and automatically due and payable in cash at the Mandatory Default Amount, without any written notice required
by Lender for the Trigger Event to become an Event of Default. At any time following the occurrence of any Event of Default, upon written
notice given by Lender to Borrower, interest shall accrue on the Outstanding Balance beginning on the date the applicable Event of Default
occurred at an interest rate equal to the lesser of fifteen percent (15%) per annum or the maximum rate permitted under applicable law
(“Default Interest”). For the avoidance of doubt, Lender may continue making Conversions at any time following a Trigger
Event or Event of Default until such time as the Outstanding Balance is paid in full. In connection with acceleration described herein,
Lender need not provide, and Borrower hereby waives, any presentment, demand, protest or other notice of any kind, and Lender may immediately
and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available
to it under applicable law. Such acceleration may be rescinded and annulled by Lender at any time prior to payment hereunder and Lender
shall have all rights as a holder of the Note until such time, if any, as Lender receives full payment of this Note. No such rescission
or annulment shall affect any subsequent Trigger Event or Event of Default or impair any right consequent thereon. Nothing herein shall
limit Lender’s right to pursue any other remedies available to it at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to Borrower’s failure to timely deliver Conversion Shares upon Conversion
of the Note as required pursuant to the terms hereof.
3
5. Unconditional
Obligation; No Offset. Borrower acknowledges that this Note is an unconditional, valid, binding, and enforceable obligation of Borrower
not subject to offset, deduction or counterclaim of any kind. Borrower hereby waives any rights of offset it now has or may have hereafter
against Lender, its successors, and assigns, and agrees to make the payments or Conversions called for herein in accordance with the
terms of this Note.
6. Waiver.
No waiver of any provision of this Note shall be effective unless it is in the form of a writing signed by the party granting the waiver.
No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other provision or consent to any other
prohibited action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to
provide a waiver or consent in the future except to the extent specifically set forth in writing.
7. Method
of Conversion Share Delivery. On or before the close of business on the second (2nd) Trading Day following the date of
delivery of a Conversion Notice (the “Delivery Date”), Borrower shall, provided it is DWAC Eligible at such time and
such Conversion Shares are eligible for delivery via DWAC, deliver or cause its transfer agent to issue and deliver the applicable Conversion
Shares electronically via DWAC to the account designated by Lender in the applicable Conversion Notice. If Borrower is not DWAC Eligible
or such Conversion Shares are not eligible for delivery via DWAC, it shall issue the applicable Conversion Shares in book entry form.
Moreover, and notwithstanding anything to the contrary herein or in any other Transaction Document, in the event Borrower or its transfer
agent refuses to deliver any Conversion Shares without a restrictive securities legend to Lender on grounds that such issuance is in
violation of Rule 144 under the Securities Act of 1933, as amended (“Rule 144”), Borrower shall deliver
or cause its transfer agent to deliver the applicable Conversion Shares to Lender with a restricted securities legend, but otherwise
in accordance with the provisions of this Section 7. In conjunction therewith, Borrower will also deliver to Lender a written explanation
from its counsel or its transfer agent’s counsel opining as to why the issuance of the applicable Conversion Shares violates Rule 144.
8. Conversion
Delays. If Borrower fails to deliver Conversion Shares by the applicable Delivery Date, Lender may at any time prior to receiving
the applicable Conversion Shares rescind in whole or in part such Conversion, with a corresponding increase to the Outstanding Balance
(any returned amount will tack back to the Purchase Price Date for purposes of determining the holding period under Rule 144). In
addition, for each Conversion, in the event that Conversion Shares are not delivered by the Delivery Date, a late fee equal to two percent
(2%) of the applicable Conversion Share Value rounded to the nearest multiple of $100.00 but with a floor of $500.00 per day (but in
any event the cumulative amount of such late fees for each Conversion shall not exceed two hundred percent (200%) of the applicable Conversion
Share Value) will be assessed for each day after the Delivery Date until Conversion Share delivery is made; and such late fees will be
added to the Outstanding Balance (such fees, the “Conversion Delay Late Fees”).
9. Subsequent
Equity Sales. If at any time while this Note is outstanding, Borrower shall sell, issue or grant any Common Shares, option to purchase
Common Shares, right to reprice, preferred shares convertible into Common Shares, or debt, warrants, options or other instruments or
securities which are convertible into or exercisable or exchangeable for Common Shares to any third party (collectively, the “Equity
Securities”), at an effective price per share less than the then effective Fixed Price (such issuance is referred to herein
as a “Dilutive Issuance”), then, the Fixed Price shall be automatically reduced to equal such lower effective price
per share. If the holder of any Equity Securities so issued shall at any time, whether by operation of purchase price adjustments, reset
provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options, or rights per share which are
issued in connection with such Dilutive Issuance, be entitled to receive Common Shares at an effective price per share that is less than
the Fixed Price, such issuance shall be deemed to have occurred for less than the Fixed Price on the date of such Dilutive Issuance,
and the then effective Fixed Price shall be reduced to equal such lower effective price per share. Such adjustments described above to
the Fixed Price shall be permanent (subject to additional adjustments under this section), and shall be made whenever such Equity Securities
are issued. Borrower shall notify Lender, in writing, no later than the Trading Day following the issuance of any Equity Securities subject
to this Section 9, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price,
or other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarity, whether or not Borrower
provides a Dilutive Issuance Notice pursuant to this Section 9, upon the occurrence of any Dilutive Issuance, on the date of such
Dilutive Issuance the Fixed Price shall be lowered to equal the applicable effective price per share. Notwithstanding anything to the
contrary contained in this Section 9, no Exempt Issuance shall constitute a Dilutive Issuance, trigger any adjustment to the Fixed
Price hereunder, or otherwise give rise to any rights of Lender under this Section 9. For purposes hereof, "Exempt Issuance"
means any of the following: (a) Common Shares, options, restricted stock units, or other equity awards issued to employees, officers,
directors, consultants or other service providers of Borrower or any of its subsidiaries pursuant to any stock or equity incentive plan
duly adopted by Borrower's board of directors (or a committee thereof) or approved by Borrower's stockholders; (b) Common Shares
issued upon the exercise, conversion, exchange or settlement of any options, warrants, convertible securities, restricted stock units
or other securities outstanding as of the Effective Date, in each case in accordance with the terms of such securities as in effect on
the Effective Date (and without any amendment thereto on or after the Effective Date); (c) Common Shares, warrants, or other securities
issued in connection with any Exempt Strategic Transaction (as defined in the Purchase Agreement); (d) Common Shares issued pursuant
to any "at-the-market" (ATM) trading facility; (e) primary offerings of Common Shares or warrants without variable price
mechanics or any anti-dilution, "alternate cash exercise" or other similar mechanics or provisions that would allow for the
reduction of the exercise price of the warrants or increase the number of shares exercisable under such warrants; and (f) the incurrence
or issuance of any subordinated indebtedness (including any securities issued in connection therewith), so long as such indebtedness
is expressly subordinated in right of payment to this Note pursuant to a subordination agreement in form and substance reasonably acceptable
to Lender.
4
10. Ownership
Limitation. Notwithstanding anything to the contrary contained in this Note or the other Transaction Documents, Borrower shall not
effect any Conversion of this Note to the extent that after giving effect to such Conversion would cause Lender (together with its affiliates)
to beneficially own a number of Common Shares exceeding 9.99% of the number of Common Shares outstanding on such date (including for
such purpose the Common Shares issuable upon such issuance) (the “Maximum Percentage”). For purposes of this section,
beneficial ownership of Common Shares will be determined pursuant to Section 13(d) of the 1934 Act (as defined in the Purchase
Agreement). The Maximum Percentage is enforceable, unconditional, and non-waivable and shall apply to all affiliates and assigns of Lender.
11. Opinion
of Counsel. If an opinion of counsel is needed for any Conversion under this Note, Lender has the right to have any such opinion
provided by its counsel.
12. Governing
Law; Venue. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Note shall be governed by, the internal laws of the State of Utah, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Utah. The provisions set forth in the Purchase Agreement to determine
the proper venue for any disputes are incorporated herein by this reference.
13. Arbitration
of Disputes. By its issuance or acceptance of this Note, each party agrees to be bound by the Arbitration Provisions (as defined
in the Purchase Agreement) set forth as an exhibit to the Purchase Agreement.
5
14. Cancellation.
After repayment or conversion of the entire Outstanding Balance, this Note shall be deemed paid in full, shall automatically be deemed
canceled, and shall not be reissued.
15. Amendments.
The prior written consent of both parties hereto shall be required for any change or amendment to this Note.
16. Assignments.
Borrower may not assign this Note without the prior written consent of Lender. This Note and any Conversion Shares issued upon conversion
of this Note may be offered, sold, assigned, or transferred by Lender without the consent of Borrower, so long as such transfer is in
accordance with applicable federal and state securities laws.
17. Notices.
Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with
the subsection of the Purchase Agreement titled “Notices.”
18. Liquidated
Damages. Lender and Borrower agree that in the event Borrower fails to comply with any of the terms or provisions of this Note, Lender’s
damages would be uncertain and difficult (if not impossible) to accurately estimate because of the parties’ inability to predict
future interest rates, future share prices, future trading volumes and other relevant factors. Accordingly, Lender and Borrower agree
that any fees, balance adjustments, Default Interest, Conversion Delay Late Fees, or other charges assessed under this Note are not penalties
but instead are intended by the parties to be, and shall be deemed, liquidated damages (under Lender’s and Borrower’s expectations
that any such liquidated damages will tack back to the Purchase Price Date for purposes of determining the holding period under Rule 144).
Therefore, no additional penalty claims, lost profits or liquidated damages shall be claimed in excess of the agreed liquidated damage
amounts under this Note.
19. Severability.
If any part of this Note is construed to be in violation of any law, such part shall be modified to fully achieve the objective of Borrower
and Lender permitted by law and the balance of this Note shall remain in full force and effect.
[Remainder of page intentionally left
blank; signature page follows]
6
IN WITNESS WHEREOF, Borrower
has caused this Note to be duly executed as of the Effective Date.
BORROWER:
Datavault AI Inc.
By:
/s/ Brett Moyer
Brett Moyer, Chief Financial Officer
ACKNOWLEDGED, ACCEPTED AND AGREED:
LENDER:
Streeterville Capital, LLC
By:
/s/ John Fife
John Fife, President
[Signature Page to Convertible Promissory
Note]
ATTACHMENT 1
DEFINITIONS
For purposes of
this Note, the following terms shall have the following meanings:
A1. “Common
Shares” means Borrower’s shares of common stock, par value $0.0001 per share.
A2. “Conversion
Amount” means the portion of the Outstanding Balance Lender elects to convert plus make-whole interest on such amount calculated
as if such amount had been held to maturity.
A3. “Conversion
Share Value” means the product of the number of Conversion Shares deliverable pursuant to any Conversion Notice multiplied
by the daily VWAP on the Delivery Date for such Conversion.
A4. “DTC”
means the Depository Trust Company or any successor thereto.
A5. “DTC/FAST
Program” means the DTC’s Fast Automated Securities Transfer program.
A6. “DWAC”
means the DTC’s Deposit/Withdrawal at Custodian system.
A7. “DWAC
Eligible” means that (a) Borrower’s Common Shares are eligible at DTC for full services pursuant to DTC’s
operational arrangements, including without limitation transfer through DTC’s DWAC system; (b) Borrower has been approved
(without revocation) by DTC’s underwriting department; (c) Borrower’s transfer agent is approved as an agent in the
DTC/FAST Program; (d) the Conversion Shares are otherwise eligible for delivery via DWAC; and (e) Borrower’s transfer
agent does not have a policy prohibiting or limiting delivery of the Conversion Shares via DWAC.
A8. “Fixed
Price” means $1.55 (as adjusted for any reverse or forward stock split or other similar event and as may be adjusted pursuant
to Section 9 above).
A9. “Fundamental
Transaction” means that (a) (i) Borrower or any of its subsidiaries shall, directly or indirectly, in one or more
related transactions, consolidate or merge with or into (whether or not Borrower or any of its subsidiaries is the surviving corporation)
any other person or entity, (ii) Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions,
sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of its respective properties or assets
to any other person or entity, (iii) Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions,
allow any other person or entity to make a purchase, tender or exchange offer that is accepted by the holders of more than fifty percent
(50%) of the outstanding shares of voting stock of Borrower (not including any shares of voting stock of Borrower held by the person
or persons making or party to, or associated or affiliated with the persons or entities making or party to, such purchase, tender or
exchange offer), (iv) Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, consummate
a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with any other person or entity whereby such other person or entity acquires more than fifty percent
(50%) of the outstanding shares of voting stock of Borrower or any subsidiary of Borrower (not including any shares of voting stock of
Borrower held by the other persons or entities making or party to, or associated or affiliated with the other persons or entities making
or party to, such stock or share purchase agreement or other business combination), (v) Borrower or any of its subsidiaries shall,
directly or indirectly, in one or more related transactions, reorganize, recapitalize or reclassify the Common Shares or any preferred
shares, other than an increase in the number of authorized Common Shares, (vi) Borrower transfers any material asset to any subsidiary,
affiliate, person or entity under common ownership or control with Borrower, or (vii) Borrower pays or makes any monetary or non-monetary
dividend or distribution to its shareholders; or (b) any “person” or “group” (as these terms are used for
purposes of Sections 13(d) and 14(d) of the 1934 Act and the rules and regulations promulgated thereunder) is or shall
become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of more than fifty
percent (50%) of the aggregate voting power represented by issued and outstanding voting stock of Borrower. For the avoidance of doubt,
Borrower or any of its subsidiaries entering into a definitive agreement that contemplates a Fundamental Transaction will be deemed to
be a Fundamental Transaction unless such agreement contains a closing condition that this Note is repaid in full upon consummation of
the transaction.
A10. “Limited
Redemption Event” means that the Common Shares trade at a price that is at least five percent (5%) greater than the Nasdaq
Minimum Price for such Trading Day.
A11. “Limited
Redemption Window” means the period beginning on the date a Limited Redemption Event occurs and ending on the date that is
five (5) Trading Days after the date the Limited Redemption Event occurs. For the avoidance of doubt, more than one (1) Limited
Redemption Window may be open at the same time.
A12. “Major
Trigger Event” means any Trigger Event occurring under Sections 4.1(a) - 4.1(k).
A13. “Mandatory
Default Amount” means the Outstanding Balance following the application of the Trigger Effect.
A14. “Market
Price” means ninety-two percent (92%) of the lowest daily VWAP during the seven (7) Trading Day period immediately preceding
the applicable measurement date.
A15. “Maximum
Limited Conversion Amount” means ten percent (10%) of the cumulative daily dollar trading volume on the Trading Day that a
Limited Redemption Event occurs; measured as the cumulative dollar trading volume on all exchanges beginning at 4:01 PM Eastern Time
on the Trading Day before the occurrence of the Limited Redemption Event and ending at 4:00 PM Eastern Time on the Trading Day during
which the Limited Redemption Event occurs. For the avoidance of doubt, the Maximum Limited Conversion Amount will include make-whole
interest on such amount calculated as if such amount had been held to maturity.
A16. “Minor
Trigger Event” means any Trigger Event that is not a Major Trigger Event.
A17. “Nasdaq
Minimum Price” means the Minimum Price as defined under Nasdaq Rule 5635(d).
A18. “Other
Agreements” means, collectively, (a) all existing and future agreements and instruments between, among or by Borrower
(or a subsidiary), on the one hand, and Lender (or an affiliate), on the other hand, and (b) any financing or other material agreement.
A19. “Outstanding
Balance” means as of any date of determination, the Purchase Price, as reduced or increased, as the case may be, pursuant to
the terms hereof for payment, Conversion, offset, or otherwise, plus the Transaction Expense Amount, plus accrued but unpaid interest,
collection and enforcements costs (including attorneys’ fees) incurred by Lender, transfer, stamp, issuance and similar taxes and
fees related to Conversions, and any other fees or charges (including without limitation Conversion Delay Late Fees) incurred under this
Note.
A20. “Purchase
Price Date” means the date the Purchase Price is delivered by Lender to Borrower.
A21. “SEC”
means the United States Securities and Exchange Commission.
A22. “Trading
Day” means any day on which the Nasdaq Stock Market (or such other principal market for the Common Shares) is open for trading.
For the avoidance doubt, Trading Day means all trades occurring on a given calendar day, including pre- and post-market trading on such
day.
A23. “Trigger
Effect” means multiplying the Outstanding Balance as of the date the applicable Trigger Event occurred by (a) fifteen
percent (15%) for each occurrence of any Major Trigger Event, or (b) five percent (5%) for each occurrence of any Minor Trigger
Event, and then adding the resulting product to the Outstanding Balance as of the date the applicable Trigger Event occurred, with the
sum of the foregoing then becoming the Outstanding Balance under this Note as of the date the applicable Trigger Event occurred; provided
that the Trigger Effect may only be applied three (3) times hereunder with respect to Major Trigger Events and three (3) times
hereunder with respect to Minor Trigger Events; and provided further that the Trigger Effect shall not apply to a Trigger Event occurring
pursuant to Section 4.1(l).
A24. “VWAP”
means the volume weighted average price of the Common Shares on the principal market for a particular Trading Day or set of Trading Days,
as the case may be, from 9:30 AM Eastern Time to 4:00 PM Eastern Time as reported by Bloomberg, L.P.
EXHIBIT A
CONVERSION NOTICE
Streeterville Capital, LLC (“Lender”)
hereby gives notice to Datavault AI Inc. (the “Borrower”), pursuant to that certain Convertible Promissory Note made
by Borrower in favor of Lender on August 18, 2026 (the “Note”), that Lender elects to convert the portion of
the Note balance set forth below into fully paid and non-assessable Common Shares of Borrower as of the date of conversion specified
below. Said conversion shall be based on the Conversion Price set forth below. In the event of a conflict between this Conversion Notice
and the Note, the Note shall govern, or, in the alternative, at the election of Lender in its sole discretion, Lender may provide a new
form of Conversion Notice to conform to the Note. Capitalized terms used in this notice without definition shall have the meanings given
to them in the Note.
A. Date of Conversion: ____________
B. Conversion #: ____________
C. Conversion Amount: ____________
D. Conversion Price: _______________
E. Conversion Shares: _______________ (C
divided by D)
F. Remaining Outstanding Balance of Note:
____________*
* Subject to adjustments for corrections, defaults,
interest and other adjustments permitted by the Transaction Documents (as defined in the Purchase Agreement), the terms of which shall
control in the event of any dispute between the terms of this Conversion Notice and such Transaction Documents.
Please transfer the Conversion Shares electronically
(via DWAC) to the following account:
Broker:
Address:
DTC#:
Account #:
Account Name:
Lender:
Streeterville Capital, LLC
By:
John Fife, President
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: tm2623556d1_ex5-1.htm · Sequence: 3
Exhibit 5.1
August 19, 2026
Datavault AI Inc.
15268 NW Greenbrier Pkwy
Beaverton, Oregon 97006
Ladies and Gentlemen:
We have acted as counsel to Datavault AI, Inc.,
a Delaware corporation (the “Company”), in connection with the offering of (i) an unsecured convertible promissory note having
an aggregate principal amount of up to $25,030,000 (the “Note”) upon satisfaction of certain closing conditions applicable
to the Note, (ii) up to $25,000,000 in aggregate principal amount of additional unsecured convertible promissory notes (the “Additional
Notes”) issuable from time to time upon exercise of the Reinvestment Right (as defined in the Securities Purchase Agreement), each
of the Note and the Additional Notes being convertible into shares (the “Conversion Shares”) of the Company’s common
stock, par value $0.0001 per share (the “Common Shares”) at a conversion price of $1.55 per share, which conversion price
is subject to adjustment in accordance with the terms of the Note and the Additional Notes, (iii) 15,000,000 Common Shares to be used
as pre-delivery shares (the “Pre-Delivery Shares”), and (iv) up to 45,000,000 additional Common Shares to be used as additional
pre-delivery shares (the “Additional Pre-Delivery Shares,” and together with the Note, the Additional Notes, the Conversion
Shares and the Pre-Delivery Shares, the “Securities”).
The Securities are being sold pursuant to a prospectus
supplement, dated August 18, 2026, and the accompanying base prospectus (together, the “Prospectus”) that form a part of the
Company’s Registration Statement on Form S-3 (File No. 333-294502) (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 March 20, 2026, and declared effective by the Commission on March 25, 2026, in accordance with
the Securities Purchase Agreement (the “Securities Purchase Agreement”) dated as of August 18, 2026, by and between the Company
and that certain investor party thereto.
This opinion is being furnished in accordance
with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
As counsel to the Company in connection with the
issuance of the Securities we have examined: (i) the Company’s certificate of incorporation, as amended, and bylaws, both as currently
in effect; (ii) certain resolutions of the board of directors relating to the issuance and sale of the Securities; (iii) Securities Purchase
Agreement; (iv) the Note and the Additional Notes; (v) the Prospectus and the Registration Statement; and (vi) such other proceedings,
documents, and records as we have deemed necessary to enable us to render this opinion. In all such examinations, we have assumed the
genuineness of all signatures, the authenticity of all documents, certificates, and instruments submitted to us as originals, and the
conformity with the originals of all documents, certificates, and instruments submitted to us as copies. We have also assumed the due
execution and delivery of all documents where due execution and delivery are prerequisite to the effectiveness thereof.
Our opinions expressed herein are subject to the
following qualifications and exceptions: (i) the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar
laws relating to or affecting the rights of creditors generally, including, without limitation, laws relating to fraudulent transfers
or conveyances, preferences, and equitable subordination; (ii) the effect of general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at
law); and (iii) we render no opinion as to the effect of the laws of any state or jurisdiction other than the General Corporation Law
of the State of Delaware and the laws of the State of New York.
Based upon and subject to the foregoing, it is
our opinion that (i) each of the Note and the Additional Notes, when issued and sold in accordance with the Securities Purchase Agreement,
the Registration Statement and the Prospectus, will be a valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, and (ii) the Conversion Shares, the Pre-Delivery Shares and the Additional Pre-Delivery Shares have been duly
authorized for issuance, and when issued and delivered in accordance with the Securities Purchase Agreement, the Registration Statement,
the Prospectus and the Note or the Additional Notes, as applicable, the Conversion Shares, the Pre-Delivery Shares and the Additional
Pre-Delivery Shares will be validly issued, fully paid and non-assessable.
This opinion is given as of the date hereof and
we assume no obligation to advise you of changes that may thereafter be brought to our attention.
We hereby consent to the reference to our firm
under the caption “Legal Matters” in the Prospectus, which forms a part of the Registration Statement and to the filing of
this opinion with the Commission as an exhibit to a Current Report on Form 8-K filed by the Company with the Commission. In giving this
consent, we do not thereby admit that we are experts within the meaning of Section 11 of the Securities Act or included in the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Sullivan & Worcester LLP
Sullivan & Worcester LLP
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2623556d1_ex10-1.htm · Sequence: 4
Exhibit 10.1
Securities
Purchase Agreement
This
Securities Purchase Agreement (this “Agreement”), dated as of August 18, 2026, is entered into by and
between Datavault AI Inc., a Delaware corporation (“Company”), and Streeterville
Capital, LLC, a Utah limited liability company (“Investor”).
A. Investor
desires to purchase and Company desires to issue and sell, upon the terms and conditions set forth in this Agreement: (i) a Convertible
Promissory Note in the original principal amount of $25,030,000.00 in the form attached hereto as Exhibit A (the “Note”),
convertible into Company’s shares of common stock, $0.0001 par value per share (the “Common Shares”), and (ii) 15,000,000
Common Shares to be used as pre-delivery shares (the “Pre-Delivery Shares”).
B. This
Agreement, the Note, and all other certificates, documents, agreements, resolutions and instruments delivered to any party under or in
connection with this Agreement, as the same may be amended from time to time, are collectively referred to herein as the “Transaction
Documents”.
C. For
purposes of this Agreement: “Conversion Shares” means all Common Shares issuable upon conversion of all or any portion
of the Note; and “Securities” means the Note, the Pre-Delivery Shares and the Conversion Shares.
NOW, THEREFORE, in
consideration of the above recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Company and Investor hereby agree as follows:
1. Purchase
and Sale of Securities.
1.1. Note.
Subject to the terms and conditions set forth herein, Company shall issue and sell to Investor and Investor shall purchase from Company
the Note. In consideration thereof, Investor shall pay: (i) $25,000,000.00 (the “Note Purchase Price”) to
Company via wire transfer of immediately available funds against delivery of the Note; and (ii) $1,500.00 (the “Pre-Delivery
Purchase Price”) against issuance of the Pre-Delivery Shares.
1.2. Closing
Date. Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below, the
date of the issuance and sale of the Note and the Pre-Delivery Shares pursuant to this Agreement (the “Closing Date”)
shall be August 18, 2026 or a mutually agreed upon date. The closing of the issuance of the Note and the Pre-Delivery Shares (the
“Closing”) shall occur on the Closing Date by means of the exchange of electronic signatures, but shall be deemed
for all purposes to have occurred at the offices of Capital Law Partners PLLC in Lehi, Utah.
1.3. Transaction
Expense Amount. Company agrees to pay $30,000.00 to Investor to cover Investor’s legal fees, accounting costs, due diligence,
monitoring and other transaction costs incurred in connection with the purchase and sale of the Securities (the “Transaction
Expense Amount”). The Transaction Expense Amount will be included in the initial principal balance of the Note.
2. Investor’s
Representations and Warranties. Investor represents and warrants to Company that as of the Closing Date: (i) this Agreement
has been duly and validly authorized by Investor; (ii) this Agreement constitutes a valid and binding agreement of Investor enforceable
in accordance with its terms; and (iii) Investor is an “accredited investor” as that term is defined in Rule 501(a) of
Regulation D of the Securities Act of 1933, as amended (the "1933 Act").
1
3. Company’s
Representations and Warranties. Company represents and warrants to Investor that as of the Closing Date: (i) Company is a corporation
duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has the requisite corporate
power to own its properties and to carry on its business as now being conducted; (ii) Company is duly qualified to do business and
is in good standing in each jurisdiction where the nature of the business conducted or property owned by it makes such qualification
necessary; (iii) Company has registered its Common Shares under Section 12(b) of the Securities Exchange Act of 1934,
as amended (the “1934 Act”), and is obligated to file reports pursuant to Section 13 or Section 15(d) of
the 1934 Act; (iv) each of the Transaction Documents and the transactions contemplated hereby and thereby, have been duly and validly
authorized by Company and all necessary actions have been taken; (v) this Agreement and the other Transaction Documents have been
duly executed and delivered by Company and constitute the valid and binding obligations of Company enforceable in accordance with their
terms; (vi) the execution and delivery of the Transaction Documents by Company, the issuance of the Securities in accordance with
the terms hereof, and the consummation by Company of the other transactions contemplated by the Transaction Documents do not and will
not conflict with or result in a breach by Company of any of the terms or provisions of, or constitute a default under (a) Company’s
formation documents, as currently in effect, or other applicable organizational documents, (b) any indenture, mortgage, deed of
trust, or other material agreement or instrument to which Company is a party or by which it or any of its properties or assets are bound,
including, without limitation, any listing agreement for the Common Shares, or (c) any existing applicable law, rule, or regulation
or any applicable decree, judgment, or order of any court, United States federal, state or foreign regulatory body, administrative agency,
or other governmental body having jurisdiction over Company or any of Company’s properties or assets; (vii) except as have
been obtained prior to the Closing, no further authorization, approval or consent of any court, governmental body, regulatory agency,
self-regulatory organization, or stock exchange or market or the stockholders or any lender of Company is required to be obtained by
Company for the issuance of the Securities to Investor or the entering into of the Transaction Documents; (viii) none of Company’s
filings with the United States Securities and Exchange Commission (the "SEC") contained, at the time they were filed,
any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were made, not misleading; (ix) Company has filed all reports,
schedules, forms, statements and other documents required to be filed by Company with the SEC under the 1934 Act on a timely basis or
has received a valid extension of such time of filing and has filed any such report, schedule, form, statement or other document prior
to the expiration of any such extension; (x) except as disclosed in the SEC Reports (as defined below) or the Prospectus Supplement
(as defined below) there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending
or, to the knowledge of Company, threatened against or affecting Company or any subsidiary before or by any governmental authority or
non-governmental department, commission, board, bureau, agency or instrumentality or any other person; (xi) Company has not consummated
any financing transaction that has not been disclosed in a periodic filing or current report with the SEC under the 1934 Act; (xii) Company
is not, nor has it been at any time in the previous twelve (12) months, a “Shell Company,” as such type of “issuer”
is described in Rule 144(i)(1) under the 1933 Act; (xiii) with respect to any commissions, placement agent or finder’s
fees or similar payments that will or would become due and owing by Company to any person or entity as a result of this Agreement or
the transactions contemplated hereby (“Broker Fees”), any such Broker Fees will be made in full compliance with all
applicable laws and regulations and only to a person or entity that is a registered investment adviser or registered broker-dealer; (xiv) Investor
shall have no obligation with respect to any Broker Fees or with respect to any claims made by or on behalf of other persons for fees
of a type contemplated in this subsection that may be due in connection with the transactions contemplated hereby and Company shall indemnify
and hold harmless each of Investor, Investor’s employees, officers, directors, stockholders, members, managers, agents, and
partners, and their respective affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and
reasonable attorneys’ fees) and expenses suffered in respect of any such claimed Broker Fees; (xv) neither Investor nor any
of its officers, members, managers, employees, agents or representatives has made any representations or warranties to Company or any
of its officers, directors, employees, agents or representatives except as expressly set forth in the Transaction Documents and, in making
its decision to enter into the transactions contemplated by the Transaction Documents, Company is not relying on any representation,
warranty, covenant or promise of Investor or its officers, members, managers, employees, agents or representatives other than as set
forth in the Transaction Documents; (xvi) Company acknowledges and agrees that the State of Utah has a reasonable relationship and
sufficient contacts to the transactions contemplated by the Transaction Documents and any dispute that may arise related thereto such
that the laws and venue of the State of Utah, as set forth more specifically in Section 13.2 below, shall be applicable to the Transaction
Documents and the transactions contemplated therein, and Company waives any objection to such jurisdiction and venue; (xvii) Company
acknowledges and agrees that Investor is not registered as a ‘dealer’ under the 1934 Act; and (xviii) Company has performed
due diligence and background research on Investor and its affiliates and has received and reviewed the due diligence summary sheet provided
by Investor. Company, being aware of the matters and legal issues described in subsections (xvii) and (xviii) above, acknowledges
and agrees that such matters, or any similar matters, have no bearing on the transactions contemplated by the Transaction Documents and
covenants and agrees it will not use any such information or legal theory as a defense to performance of its obligations under the Transaction
Documents or in any attempt to avoid, modify, reduce, rescind or void such obligations. For purposes hereof, "SEC Reports"
means all reports, schedules, forms, statements and other documents required to be filed by Company with the SEC pursuant to Section 13
or 15(d) of the 1934 Act since the filing of Company's most recent Annual Report on Form 10-K, including all Annual Reports
on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K (and any amendments thereto), in each case
filed prior to the date of this Agreement.
2
4. Company
Covenants. Until all of Company’s obligations under all of the Transaction Documents are paid and performed in full, or within
the timeframes otherwise specifically set forth below, Company will at all times comply with the following covenants: (i) so long
as Investor beneficially owns the Note and for at least twenty (20) Trading Days (as defined in the Note) thereafter, Company will timely
file on the applicable deadline all reports required to be filed with the SEC pursuant to Sections 13 or 15(d) of the 1934
Act, and will take all reasonable action under its control to ensure that adequate current public information with respect to Company,
as required in accordance with Rule 144 of the 1933 Act, is publicly available, and will not terminate its status as an issuer required
to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would permit such termination; (ii) Company
will ensure that the Common Shares will remain listed or quoted for trading on NYSE, NYSE American, or Nasdaq; (iii) Company will
ensure that trading in the Common Shares will not be suspended, halted, chilled, frozen, reach zero bid or otherwise cease trading on
Company’s principal trading market; (iv) Company will not make any Restricted Issuance (as defined below) without Investor's
prior written consent, which consent may be granted or withheld in Investor's sole and absolute discretion; provided, however, that the
foregoing shall not apply to, and Investor's consent shall not be required in connection with, any issuance of equity securities with
no variable rate conversion features or mechanics by Company in connection with any strategic business transaction with Helmex Financial
LLP and/or Helmex Global LLP, NYIAX, Inc. or BankWyse, a trade name of Wyoming Deposit & Transfer Corp. (or any of their
respective affiliates or successors), or any other strategic business transaction (each, an "Exempt Strategic Transaction");
(v) Company will not enter into any agreement or otherwise agree to any covenant, condition, or obligation that locks up, restricts
in any way or otherwise prohibits Company: (a) from entering into a variable rate transaction with Investor, or (b) from issuing
Common Shares, preferred stock, warrants, convertible notes, other debt securities, or any other Company securities to Investor; (vi) Company
will not, and will not permit any majority-owned subsidiary of Company to, directly or indirectly, sell, transfer, assign, pledge, encumber,
distribute (whether by dividend, spin-off or otherwise), or otherwise dispose of any equity interests in any majority-owned subsidiary
of Company; (vii) Company will not, and will not permit any majority-owned subsidiary of Company to, issue, sell, or grant any additional
equity interests in any majority-owned subsidiary of Company, or any options, warrants, or other rights to acquire, or any securities
convertible into or exchangeable for, such equity interests; and (viii) within four (4) Trading Days of the Closing Date, Company
will disclose the transactions contemplated by the Transaction Documents by filing a Form 8-K with the SEC.
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For purposes hereof, the term
“Restricted Issuance” means (i) the issuance, incurrence or guaranty of any debt obligations (including any merchant
cash advance, account receivable factoring or other similar agreement), greater than $1,000,000.00 in the aggregate other than trade
payables in the ordinary course of business, or (ii) the issuance of any securities that (a) have or may have conversion rights
of any kind, contingent, conditional or otherwise, in which the number of shares that may be issued pursuant to such conversion right
varies with the market price of the Common Shares; (b) are or may become convertible into Common Shares (including without limitation
convertible debt, warrants or convertible preferred shares), with a conversion price that varies with the market price of the Common
Shares, even if such security only becomes convertible following an event of default, the passage of time, or another trigger event or
condition; (c) have a fixed conversion price, exercise price or exchange price that is subject to being reset at some future date
at any time after the initial issuance of such debt or equity security (1) due to a change in the market price of Company’s
Common Shares since the date of the initial issuance or (2) upon the occurrence of specified or contingent events directly or indirectly
related to the business of Company (including, without limitation, any “full ratchet” or “weighted average” anti-dilution
provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction); or (d) are issued or will be issued in connection with a Section 3(a)(9) exchange,
a Section 3(a)(10) settlement, or any other similar settlement or exchange. Notwithstanding the foregoing, Common Shares issued
pursuant to any of the following will not be considered Restricted Issuances: (i) "at-the-market" (ATM) trading facilities;
(ii) primary offerings of Common Shares or warrants without variable price mechanics or any anti-dilution, "alternate cash
exercise" or other similar mechanics or provisions that would allow for the reduction of the exercise price of the warrants or increase
the number of shares exercisable under the Warrants; (iii) any Exempt Strategic Transaction; and (iv) the incurrence or issuance
of any subordinated indebtedness (including any securities issued in connection therewith), so long as such indebtedness is expressly
subordinated in right of payment to the Note pursuant to a subordination agreement in form and substance reasonably acceptable to Investor
and such subordinated debt does not contain any variable price conversion features or mechanics.
5. Conditions
to Company’s Obligation to Sell. The obligation of Company hereunder to issue and sell the Note and the Pre-Delivery Shares
to Investor at the Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions:
5.1. Investor
shall have executed all applicable Transaction Documents and delivered the same to Company.
5.2. Investor
shall have delivered the Note Purchase Price and the Pre-Delivery Purchase Price to Company.
6. Conditions
to Investor’s Obligation to Purchase. The obligation of Investor hereunder to purchase the Note and the Pre-Delivery Shares
is subject to the satisfaction, on or before the Closing Date, of each of the following conditions, provided that these conditions are
for Investor’s sole benefit and may be waived by Investor at any time in its sole discretion:
6.1. Company
shall have executed all applicable Transaction Documents and delivered the same to Investor.
6.2. All
applicable parties shall have executed and delivered a Voting Agreement substantially in the form attached hereto as Exhibit B.
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6.3. Company’s
transfer agent (the “Transfer Agent”) shall have executed an Irrevocable Transfer Agent Instruction Letter substantially
in the form attached hereto as Exhibit C.
6.4. Company
shall have delivered to Investor a fully executed Officer’s Certificate substantially in the form attached hereto as Exhibit D
evidencing Company’s approval of the Transaction Documents.
6.5. Company
shall have delivered to Investor a fully executed Share Issuance Resolution substantially in the form attached hereto as Exhibit E
to be delivered to the Transfer Agent.
6.6. Company
shall have issued the Pre-Delivery Shares.
6.7. Company
shall have delivered 15,000,000 of the Pre-Delivery Shares (the “Initial Pre-Delivery Shares”) to Investor’s
brokerage account.
6.8. Company
shall have filed a Form 424B prospectus supplement (the “Prospectus Supplement”) to its registration statement
on Form S-3 (333-294502) that is reasonably acceptable to Investor for the registration of the Pre-Delivery Shares and all Conversion
Shares that may be issuable pursuant to any conversion by Investor under the Note and deliver to Investor any legal opinions deemed necessary
by Investor to trade the Conversion Shares under such Form 424B prospectus.
7. Reservation
of Shares. On the date hereof, Company will reserve 300,000,000 Common Shares from its authorized and unissued Common Shares to provide
for all issuances of Conversion Shares under the Note (the “Share Reserve”). Company further agrees to add additional
Common Shares to the Share Reserve in increments of 1,000,000 shares as and when requested by Investor if as of the date of any such
request the number of Common Shares being held in the Share Reserve is less than three (3) times the number of Common Shares obtained
by dividing the aggregate outstanding balance of the Note and the Additional Notes (as defined below), if applicable, by the Market Price
(as defined in the Note). Company shall further require its Transfer Agent to hold the Common Shares reserved pursuant to the Share Reserve
exclusively for the benefit of Investor and to issue such shares to Investor promptly upon Investor’s delivery of a Conversion
Notice (as defined in the Note) under the Note or the Additional Notes. Company shall require the Transfer Agent to issue Common Shares
to Investor out of its authorized and unissued shares, and not the Share Reserve, to the extent Common Shares have been authorized, but
not issued, and are not included in the Share Reserve. The Transfer Agent shall only issue Common Shares out of the Share Reserve to
the extent there are no other authorized shares available for issuance and then only with Investor’s written consent.
8. Most
Favored Nation. So long as the Note is outstanding, upon any issuance by Company of any security with any economic term or condition
more favorable to the holder of such debt security or with a term in favor of the holder of such security that was not similarly provided
to Investor in the Transaction Documents, then Company shall notify Investor of such additional or more favorable term and such term,
at Investor’s option, shall become a part of the Transaction Documents for the benefit of Investor. Additionally, if Company fails
to notify Investor of any such additional or more favorable term, but Investor becomes aware that Company has granted such a term to
any third party, Investor may notify Company of such additional or more favorable term and such term shall become a part of the
Transaction Documents retroactive to the date on which such term was granted to the applicable third party. The types of terms contained
in another security that may be more favorable to the holder of such security include, but are not limited to, terms addressing conversion
discounts, conversion lookback periods, interest rates, original issue discounts, floor prices, stock sale prices, conversion prices,
warrant coverage, warrant exercise prices, and anti-dilution/conversion and exercise price resets.
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9. Reinvestment
Right. Reinvestment Right. At any time during the period beginning on the Closing Date and ending on the date that is twelve
(12) months from the Closing Date, Investor will have the right, but not the obligation, to invest up to an additional $25,000,000.00
through the purchase of one or more additional notes from time to time (the “Additional Notes”) on the same terms
and conditions as the Note (the “Reinvestment Right”). The Convertible Promissory Note issued pursuant to the Reinvestment
Right would have a new thirty (30) month maturity date, but the dates of September 1, 2026, October 1, 2026, December 31,
2026, and January 1, 2027 found in the Note would remain fixed and not be extended. Upon each exercise of the Reinvestment Right
by Investor, Company will issue additional Pre-Delivery Shares (the “Additional Pre-Delivery Shares”) in Investor's
name, to be held by the Transfer Agent in unrestricted book-entry form for the benefit of Investor, such that the total number of Pre-Delivery
Shares issued hereunder will be equal to 4.99% of Company’s issued and outstanding shares on such date, and any such Additional
Pre-Delivery Shares for all purposes under Section 12, including, without limitation, for purposes of the true-up provisions set
forth in 12.1. For the avoidance of doubt, the Reinvestment Right will survive repayment of the Note and include the obligation of Company
to register the Common Shares issuable pursuant to all Additional Notes and any Additional Pre-Delivery Shares on a Form S-3 shelf
registration statement. Beginning on the date that is six (6) months from the date Company obtains the Approval (as defined below),
Company will have the right to terminate the Reinvestment Right by providing Investor with ten (10) Trading Days’ written
notice. Investor will have the right to exercise the Reinvestment Right during such ten (10) day notice period.
10. Exchange
Cap. Notwithstanding anything to the contrary contained in this Agreement or the other Transaction Documents, Company and Investor
agree that the total cumulative number of Common Shares issued to Investor pursuant to conversions of the Note may not exceed the requirements
of Nasdaq Listing Rule 5635(d) (the “Exchange Cap”), except that such limitation will not apply following
Approval (defined below) or if otherwise inapplicable. Within ninety (90) days of the Closing Date, Company will seek stockholder approval
of all Common Shares that may be issued pursuant to conversions under the Note, conversions in connection with the Reinvestment Right,
and issuances of Pre-Delivery Shares pursuant to this Agreement, in excess of the Exchange Cap (the “Approval”). If
Company fails to obtain the Approval at its next stockholder meeting, Company will continue seeking the Approval every ninety (90) days
thereafter until the Approval is obtained.
11. Trading
Volume Limitation. Investor agrees that so long as no Event of Default (as defined in the Note) has occurred under the Note, it will
not sell Common Shares during any calendar week in an amount exceeding ten percent (10%) of the total weekly dollar trading volume of
the Common Shares on all trading markets (including regular and extended trading) for such week (the “Weekly Sales Cap”).
In the event Investor’s sales of Common Shares in any given week exceed the Weekly Sales Cap, Company’s sole and exclusive
remedy shall be a reduction in the outstanding balance of the Note equal to the dollar amount that Investor’s sales of Common Shares
exceeded the Weekly Sales Cap. For the avoidance of doubt, both the Weekly Sales Cap and Company’s remedy related to such limitation
shall expire thirty (30) days after repayment of the Note in full.
12. Pre-Delivery
Shares; No Short Sales.
12.1. Issuance
and True-Up. On the Closing Date, Company shall issue and deliver the Initial Pre-Delivery Shares to Investor's brokerage account.
On October 1, 2026, and on the first Trading Day of each calendar month thereafter (each, a “True-Up Date”),
until the Note and all Additional Notes, if any, have been repaid in full or all Additional Pre-Delivery Shares have been delivered to
Investor's brokerage account, Company shall calculate the number of shares obtained by dividing $4,500,000.00 by the Nasdaq Minimum Price
(as defined in the Note) as of such True-Up Date (the “True-Up Share Amount”). If the True-Up Share Amount exceeds
the aggregate number of Pre-Delivery Shares previously delivered to Investor’s brokerage account, Investor shall be entitled
to instruct the Transfer Agent to transfer to Investor's brokerage account a number of Additional Pre-Delivery Shares equal to such excess.
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12.2. Transfer.
Investor shall not, directly or indirectly, sell, transfer, offer, exchange, assign, pledge, encumber, hypothecate or otherwise dispose
of, or enter into any contract, option or other agreement with respect to any sale, transfer, offer, exchange, assignment, pledge, encumbrance,
hypothecation or other disposition of (collectively, “Transfer”), any Pre-Delivery Shares, provided; however,
that during the period beginning on any day in which Investor delivers a Conversion Notice to Company and ending on the date of delivery
of the Conversion Shares by Company covered by such Conversion Notice (such period, the “Interim Period”), Investor
may Transfer a number of Pre-Delivery Shares up to the number of Conversion Shares covered by the applicable Conversion Notice; provided
further that to the extent any such Transfer is made by Investor during the Interim Period, an equal number of Conversion Shares shall
be deemed to be Pre-Delivery Shares upon delivery by Company to Investor (which shall be subject to the terms and conditions hereunder
applicable to Pre-Delivery Shares) such that the total number of Pre-Delivery Shares held by Investor prior to Company’s exercise
of its repurchase right under Section 12.3 shall always be equal to the initial number of Pre-Delivery Shares delivered to Investor
hereunder except during the Interim Period. In the event Company is unable to deliver Conversion Shares without exceeding the Exchange
Cap, Investor will have the right in its sole discretion to apply any Pre-Delivery Shares held by Investor to the satisfaction of
such Conversion Notice and such Pre-Delivery Shares will be released from the repurchase right under Section 12.3. Notwithstanding
the foregoing, starting on September 1, 2026, Investor may Transfer any or all of the Pre-Delivery Shares without regard to
whether an Interim Period is then in effect; provided that, commencing on or before September 16, 2026 and continuing on every tenth
(10th) Trading Day thereafter (or sooner if elected by Investor), Investor shall deliver to Company a Conversion Notice at the Market
Price for such Trading Day for a number of Conversion Shares equal to all Transfers of Pre-Delivery Shares made by Investor during the
immediately preceding ten (10) Trading Day (or shorter, if applicable) period.
12.3. Repurchase.
At such time as: (i) the Note and the Additional Notes, if applicable, have all been repaid in full, and (ii) Company has received
the Approval, Company may repurchase the Pre-Delivery Shares upon a written request delivered to Investor, and within twenty (20) Trading
Days of such written request from Company, Investor shall deliver to Company a number of Common Shares equal to the number of Pre-Delivery
Shares issued hereunder (as adjusted for any share splits, share dividends, share combinations, recapitalizations or other similar transactions
occurring after the date hereof or as released pursuant to an offset under Section 12.2), and Company will pay Investor the Pre-Delivery
Purchase Price (as reduced pursuant to an offset under Section 12.2) prior to Investor's delivery of such shares.
12.4. No
Shorting. Until the Note and the Additional Notes, if applicable, have been repaid in full, neither Investor nor any of its subsidiaries,
directors, officers, employees or other affiliates has or will directly or indirectly engage in any open market Short Sales (as defined
in Regulation SHO) of Common Shares; provided, however, that unless and until Company has affirmatively demonstrated by the use of specific
evidence that Investor is engaging in open market Short Sales, Investor shall be assumed to be in compliance with the provisions
of this Section 12.4 and Company shall remain fully obligated to fulfill all of its obligations under the Transaction Documents;
and provided, further, that (i) Company shall under no circumstances be entitled to request or demand that Investor either (a) provide
trading or other records of Investor or of any party or (b) affirmatively demonstrate that Investor or any other party has not engaged
in any such Short Sales in breach of these provisions as a condition to Company’s fulfillment of its obligations under any of the
Transaction Documents, (ii) Company shall not assert Investor’s or any other party’s failure to demonstrate such absence
of such Short Sales or provide any trading or other records of Investor or any other party as all or part of a defense to any breach
of Company’s obligations under any of the Transaction Documents, and (iii) Company shall have no setoff right with respect
to any such Short Sales. For the purposes hereof, and in accordance with Regulation SHO, the sale within one (1) Trading Day of
delivery of a Conversion Notice of such number of Common Shares reasonably expected to be purchased under such Conversion Notice shall
not be deemed a Short Sale.
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13. Miscellaneous.
The provisions set forth in this Section 13 shall apply to this Agreement, as well as all other Transaction Documents as if these
terms were fully set forth therein; provided, however, that in the event there is a conflict between any provision set
forth in this Section 13 and any provision in any other Transaction Document, the provision in such other Transaction Document shall
govern.
13.1. Arbitration
of Claims. The parties shall submit all Claims (as defined in Exhibit F) arising under this Agreement or any other Transaction
Document or any other agreement between the parties and their affiliates or any Claim relating to the relationship of the parties to
binding arbitration pursuant to the arbitration provisions set forth in Exhibit F attached hereto (the “Arbitration
Provisions”). For the avoidance of doubt, the parties agree that the injunction described in Section 13.3 below may be
pursued in an arbitration that is separate and apart from any other arbitration regarding all other Claims arising under the Transaction
Documents. The parties hereby acknowledge and agree that the Arbitration Provisions are unconditionally binding on the parties hereto
and are severable from all other provisions of this Agreement. By executing this Agreement, Company represents, warrants and covenants
that Company has reviewed the Arbitration Provisions carefully, consulted with legal counsel about such provisions (or waived its right
to do so), understands that the Arbitration Provisions are intended to allow for the expeditious and efficient resolution of any dispute
hereunder, agrees to the terms and limitations set forth in the Arbitration Provisions, and that Company will not take a position contrary
to the foregoing representations. Company acknowledges and agrees that Investor may rely upon the foregoing representations, warranties
and covenants of Company regarding the Arbitration Provisions.
13.2. Governing
Law; Venue. This Agreement shall be construed and enforced in accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the internal laws of the State of Utah, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of Utah. Each party consents to and expressly agrees that the exclusive
venue for arbitration of any dispute arising out of or relating to any Transaction Document or the relationship of the parties or their
affiliates shall be in Salt Lake County, Utah. Without modifying the parties’ obligations to resolve disputes hereunder pursuant
to the Arbitration Provisions, for any litigation arising in connection with any of the Transaction Documents (and notwithstanding the
terms (specifically including any governing law and venue terms) of any transfer agent services agreement or other agreement between
the Transfer Agent and Company, such litigation specifically includes, without limitation any action between or involving Company and
the Transfer Agent or otherwise related to Investor in any way (specifically including, without limitation, any action where Company
seeks to obtain an injunction, temporary restraining order, or otherwise prohibit the Transfer Agent from issuing Common Shares to Investor
for any reason)), each party hereto hereby (i) consents to and expressly submits to the exclusive personal jurisdiction of any state
or federal court sitting in Salt Lake County, Utah, (ii) expressly submits to the exclusive venue of any such court for the purposes
hereof, (iii) agrees to not bring any such action (specifically including, without limitation, any action where Company seeks to
obtain an injunction, temporary restraining order, or otherwise prohibit the Transfer Agent from issuing Common Shares to Investor for
any reason) outside of any state or federal court sitting in Salt Lake County, Utah, and (iv) waives any claim of improper venue
and any claim or objection that such courts are an inconvenient forum or any other claim, defense or objection to the bringing of any
such proceeding in such jurisdiction or to any claim that such venue of the suit, action or proceeding is improper. Finally, Company
covenants and agrees to name Investor as a party in interest in, and provide written notice to Investor in accordance with Section 13.10
below prior to bringing or filing, any action (including without limitation any filing or action against any person or entity that is
not a party to this Agreement, including without limitation the Transfer Agent) that is related in any way to the Transaction Documents
or any transaction contemplated herein or therein, including without limitation any action brought by Company to enjoin or prevent the
issuance of any Common Shares to Investor by the Transfer Agent, and further agrees to timely name Investor as a party to any such action.
Company acknowledges that the governing law and venue provisions set forth in this Section 13.2 are material terms to induce Investor
to enter into the Transaction Documents and that but for Company’s agreements set forth in this Section 13.2 Investor would
not have entered into the Transaction Documents.
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13.3. Specific
Performance. Company acknowledges and agrees that Investor may suffer irreparable harm in the event that Company fails to perform
any material provision of this Agreement or any of the other Transaction Documents in accordance with its specific terms. It is accordingly
agreed that Investor shall be entitled to one or more injunctions to prevent or cure breaches of the provisions of this Agreement or
such other Transaction Document and to enforce specifically the terms and provisions hereof or thereof, this being in addition to any
other remedy to which Investor may be entitled under the Transaction Documents, at law or in equity. Company specifically agrees that:
(i) following an Event of Default under the Note, Investor shall have the right to seek injunctive relief from a court or an
arbitrator prohibiting Company from issuing any of its Common Shares or preferred stock to any party unless fifty percent (50%) of the
gross proceeds received by Company in connection with such issuance are simultaneously used by Company to make a payment under the Note;
(ii) following a breach of Section 4(v) above, Investor shall have the right to seek injunctive relief from a court
or arbitrator invalidating such lock-up; and (iii) if Company enters into a definitive agreement that contemplates a Fundamental
Transaction (as defined in the Note), unless such agreement contains a closing condition that the Note is repaid in full upon consummation
of the transaction or Investor has provided its prior written consent to such Fundamental Transaction, Investor shall have the right
to seek injunctive relief from a court or arbitrator preventing the consummation of such transaction. Company specifically acknowledges
that Investor’s right to obtain specific performance constitutes bargained for leverage and that the loss of such leverage would
result in irreparable harm to Investor. For the avoidance of doubt, in the event Investor seeks to obtain an injunction from a court
or an arbitrator against Company or specific performance of any provision of any Transaction Document, such action shall not be a waiver
of any right of Investor under any Transaction Document, at law, or in equity, including without limitation its rights to arbitrate any
Claim pursuant to the terms of the Transaction Documents, nor shall Investor’s pursuit of an injunction prevent Investor, under
the doctrines of claim preclusion, issues preclusion, res judicata or other similar legal doctrines, from pursuing other Claims in the
future in a separate arbitration.
13.4. Calculation
Disputes. Notwithstanding the Arbitration Provisions, in the case of a dispute as to any determination or arithmetic calculation
under the Transaction Documents, including without limitation, calculating the outstanding balance, Conversion Price, Conversion Shares,
or VWAP (as defined in the Note) (each, a “Calculation”), Company or Investor (as the case may be) shall submit any
disputed Calculation via email or facsimile with confirmation of receipt (i) within two (2) Trading Days after receipt of the
applicable notice giving rise to such dispute to Company or Investor (as the case may be) or (ii) if no notice gave rise to such
dispute, at any time after Investor learned of the circumstances giving rise to such dispute. If Investor and Company are unable to agree
upon such Calculation within two (2) Trading Days of such disputed Calculation being submitted to Company or Investor (as the case
may be), then Investor will promptly submit via email or facsimile the disputed Calculation to Unkar Systems Inc. (“Unkar Systems”).
Investor shall cause Unkar Systems to perform the Calculation and notify Company and Investor of the results no later than ten (10) Trading
Days from the time it receives such disputed Calculation. Unkar Systems’ determination of the disputed Calculation shall be binding
upon all parties absent demonstrable error. Unkar Systems’ fee for performing such Calculation shall be paid by the incorrect party,
or if both parties are incorrect, by the party whose Calculation is furthest from the correct Calculation as determined by Unkar Systems.
In the event Company is the losing party, no extension of the Delivery Date (as defined in the Note) shall be granted and Company shall
incur all effects for failing to deliver the applicable shares in a timely manner as set forth in the Transaction Documents. Notwithstanding
the foregoing, Investor may, in its sole discretion, designate an independent, reputable investment bank or accounting firm other
than Unkar Systems to resolve any such dispute and in such event, all references to “Unkar Systems” herein will be replaced
with references to such independent, reputable investment bank or accounting firm so designated by Investor.
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13.5. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Counterparts may be delivered via exchange of electronic signatures (including pdf or any
electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any
counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
13.6. Headings.
The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the interpretation of, this
Agreement.
13.7. Severability.
In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such
statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof.
13.8. Entire
Agreement. This Agreement, together with the other Transaction Documents, contains the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth herein or therein, neither Company nor Investor makes
any representation, warranty, covenant or undertaking with respect to such matters. For the avoidance of doubt, all prior term sheets
or other documents between Company and Investor, or any affiliate thereof, related to the transactions contemplated by the Transaction
Documents (collectively, “Prior Agreements”), that may have been entered into between Company and Investor, or any
affiliate thereof, are hereby null and void and deemed to be replaced in their entirety by the Transaction Documents. To the extent there
is a conflict between any term set forth in any Prior Agreement and the term(s) of the Transaction Documents, the Transaction Documents
shall govern.
13.9. Amendments.
No provision of this Agreement may be waived or amended other than by an instrument in writing signed by both parties hereto.
13.10. Notices.
Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall be deemed effectively
given on the earliest of: (i) the date delivered, if delivered by personal delivery as against written receipt therefor or by email
to an executive officer named below or such officer’s successor, or by facsimile (with successful transmission confirmation which
is kept by sending party), (ii) the earlier of the date delivered or the third Trading Day after deposit, postage prepaid, in the
United States Postal Service by certified mail or with an international courier, or (iii) the earlier of the date delivered or the
third Trading Day after mailing by express courier, with delivery costs and fees prepaid, in each case, addressed to each of the other
parties thereunto entitled at the following addresses (or at such other addresses as such party may designate by five (5) calendar
days’ advance written notice similarly given to each of the other parties hereto):
If to Company:
Datavault AI Inc.
Attn: Brett Moyer
One Commerce Square
2005 Market Street, Suite 2400
Philadelphia, Pennsylvania 19103
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If to Investor:
Streeterville Capital, LLC
Attn: John Fife
297 Auto Mall Drive #4
St. George, Utah 84770
With a copy to (which copy shall not constitute notice):
Capital Law Partners PLLC
Attn: Jonathan Hansen
1873 W. Traverse Pkwy Ste. E #610
Lehi, Utah 84048
13.11. Successors
and Assigns. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be performed by Investor
hereunder may be assigned by Investor to a third party, including its affiliates, in whole or in part, without the need to obtain Company’s
consent thereto. Company may not assign its rights or obligations under this Agreement or delegate its duties hereunder, whether directly
or indirectly, without the prior written consent of Investor, and any such attempted assignment or delegation shall be null and void.
13.12. Survival.
The representations and warranties of Company and the agreements and covenants set forth in this Agreement shall survive the Closing
hereunder notwithstanding any due diligence investigation conducted by or on behalf of Investor. Company agrees to indemnify and hold
harmless Investor and all its officers, directors, employees, attorneys, and agents for loss or damage arising as a result of or related
to any breach or alleged breach by Company of any of its representations, warranties and covenants set forth in this Agreement or any
of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred.
13.13. Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
13.14. Investor’s
Rights and Remedies Cumulative. All rights, remedies, and powers conferred in this Agreement and the Transaction Documents are cumulative
and not exclusive of any other rights or remedies, and shall be in addition to every other right, power, and remedy that Investor may
have, whether specifically granted in this Agreement or any other Transaction Document, or existing at law, in equity, or by statute,
and any and all such rights and remedies may be exercised from time to time and as often and in such order as Investor may deem expedient.
13.15. Attorneys’
Fees and Cost of Collection. In the event any suit, action or arbitration is filed by either party against the other to interpret
or enforce any of the Transaction Documents, the unsuccessful party to such action agrees to pay to the prevailing party all costs and
expenses, including reasonable attorneys’ fees incurred therein, including the same with respect to an appeal. The “prevailing
party” shall be the party in whose favor a judgment is entered, regardless of whether judgment is entered on all claims asserted
by such party and regardless of the amount of the judgment; or where, due to the assertion of counterclaims, judgments are entered in
favor of and against both parties, then the arbitrator shall determine the “prevailing party” by taking into account the
relative dollar amounts of the judgments or, if the judgments involve nonmonetary relief, the relative importance and value of such relief.
Nothing herein shall restrict or impair an arbitrator’s or a court’s power to award fees and expenses for frivolous or bad
faith pleading. If (i) the Note is placed in the hands of an attorney for collection or enforcement prior to commencing arbitration
or legal proceedings, or is collected or enforced through any arbitration or legal proceeding, or Investor otherwise takes action to
collect amounts due under the Note or to enforce the provisions of the Note, or (ii) there occurs any bankruptcy, reorganization,
receivership of Company or other proceedings affecting Company’s creditors’ rights and involving a claim under the Note;
then Company shall pay the costs incurred by Investor for such collection, enforcement or action or in connection with such bankruptcy,
reorganization, receivership or other proceeding, including, without limitation, reasonable attorneys’ fees, expenses, deposition
costs, and disbursements.
11
13.16. Waiver.
No waiver of any provision of this Agreement shall be effective unless it is in the form of a writing signed by the party granting the
waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other provision or consent to
any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a
party to provide a waiver or consent in the future except to the extent specifically set forth in writing.
13.17. Waiver
of Jury Trial. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO DEMAND THAT ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR THE RELATIONSHIPS
OF THE PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING UNDER COMMON LAW
OR ANY APPLICABLE STATUTE, LAW, RULE OR REGULATION. FURTHER, EACH PARTY HERETO ACKNOWLEDGES THAT SUCH PARTY IS KNOWINGLY AND VOLUNTARILY
WAIVING SUCH PARTY’S RIGHT TO DEMAND TRIAL BY JURY.
13.18. Time
is of the Essence. Time is expressly made of the essence with respect to each and every provision of this Agreement and the other
Transaction Documents.
13.19. Voluntary
Agreement. Company has carefully read this Agreement and each of the other Transaction Documents and has asked any questions needed
for Company to understand the terms, consequences and binding effect of this Agreement and each of the other Transaction Documents and
fully understand them. Company has had the opportunity to seek the advice of an attorney of Company’s choosing, or has waived the
right to do so, and is executing this Agreement and each of the other Transaction Documents voluntarily and without any duress or undue
influence by Investor or anyone else.
13.20. Third-Party
Beneficiaries. This Agreement and each of the other Transaction Documents is intended for the benefit of the parties hereto and their
respective permitted successors and assigns. There are no third-party beneficiaries of this Agreement or any other Transaction Document.
Nothing in this Agreement or any other Transaction Document, express or implied, is intended to confer upon any other person any rights,
remedies, obligations or liabilities of any nature whatsoever.
[Remainder of page intentionally left
blank; signature page follows]
12
IN WITNESS WHEREOF, the undersigned
Investor and Company have caused this Agreement to be duly executed as of the date first above written.
INVESTOR:
Streeterville Capital, LLC
By:
/s/ John Fife
John Fife, President
COMPANY:
Datavault AI Inc.
By:
/s/ Brett Moyer
Brett Moyer, Chief Financial Officer
[Signature Page to
Securities Purchase Agreement]
ATTACHED EXHIBITS:
Exhibit A
Note
Exhibit B
Voting Agreement
Exhibit C
TA Letter
Exhibit D
Officer’s Certificate
Exhibit E
Share Issuance Resolution
Exhibit F
Arbitration Provisions
Exhibit F
ARBITRATION PROVISIONS
1. Dispute
Resolution. For purposes of these arbitration provisions (the “Arbitration Provisions”), the term “Claims”
means any disputes, claims, demands, causes of action, requests for injunctive relief, requests for specific performance, liabilities,
damages, losses, or controversies whatsoever arising from, related to, or connected with the transactions contemplated in the Transaction
Documents and any communications between the parties related thereto, including without limitation any claims of mutual mistake, mistake,
fraud, misrepresentation, failure of formation, failure of consideration, promissory estoppel, unconscionability, failure of condition
precedent, rescission, and any statutory claims, tort claims, contract claims, or claims to void, invalidate or terminate the Agreement
(or these Arbitration Provisions) or any of the other Transaction Documents. For the avoidance of doubt, Investor’s pursuit
of an injunction or other Claim pursuant to these Arbitration Provisions or with a court will not later prevent Investor under the doctrines
of claim preclusion, issue preclusion, res judicata or other similar legal doctrines from pursuing other Claims in a separate arbitration
in the future. The parties to the Agreement (the “parties”) hereby agree that the Claims may be arbitrated in one
or more arbitrations pursuant to these Arbitration Provisions (one for an injunction or injunctions and a separate one for all other
Claims). The term “Claims” specifically excludes a dispute over Calculations. The parties to the Agreement hereby agree that
these Arbitration Provisions are binding on each of them. As a result, any attempt to rescind the Agreement (or these Arbitration Provisions)
or any other Transaction Document) or declare the Agreement (or these Arbitration Provisions) or any other Transaction Document invalid
or unenforceable pursuant to Section 29 of the 1934 Act or for any other reason is subject to these Arbitration Provisions. Any
capitalized term not defined in these Arbitration Provisions shall have the meaning set forth in the Agreement.
2. Arbitration.
Except as otherwise provided herein, all Claims must be submitted to arbitration (“Arbitration”) to be conducted exclusively
in Salt Lake County, Utah and pursuant to the terms set forth in these Arbitration Provisions. Subject to the arbitration appeal right
provided for in Paragraph 5 below (the “Appeal Right”), the parties agree that the award of the arbitrator rendered
pursuant to Paragraph 4 below (the “Arbitration Award”) shall be (a) final and binding upon the parties, (b) the
sole and exclusive remedy between them regarding any Claims, counterclaims, issues, or accountings presented or pleaded to the arbitrator,
and (c) promptly payable in United States dollars free of any tax, deduction or offset (with respect to monetary awards). Subject
to the Appeal Right, any costs or fees, including without limitation reasonable attorneys’ fees, incurred in connection with or
incident to enforcing the Arbitration Award shall, to the maximum extent permitted by law, be charged against the party resisting such
enforcement. The Arbitration Award shall include default interest (as defined or otherwise provided for in the Note, “Default
Interest”) (with respect to monetary awards) at the rate specified in the Note for Default Interest both before and after the
Arbitration Award. Judgment upon the Arbitration Award will be entered and enforced by any state or federal court sitting in Salt Lake
County, Utah.
3. The Arbitration
Act. The parties hereby incorporate herein the provisions and procedures set forth in the Utah Uniform Arbitration Act, U.C.A. §
78B-11-101 et seq. (as amended or superseded from time to time, the “Arbitration Act”). Notwithstanding the
foregoing, pursuant to, and to the maximum extent permitted by, Section 105 of the Arbitration Act, in the event of conflict or
variation between the terms of these Arbitration Provisions and the provisions of the Arbitration Act, the terms of these Arbitration
Provisions shall control and the parties hereby waive or otherwise agree to vary the effect of all requirements of the Arbitration Act
that may conflict with or vary from these Arbitration Provisions.
4. Arbitration
Proceedings. Arbitration between the parties will be subject to the following:
4.1 Initiation
of Arbitration. Pursuant to Section 110 of the Arbitration Act, the parties agree that a party may initiate Arbitration by giving
written notice to the other party (“Arbitration Notice”) in the same manner that notice is permitted under Section 13.10
of the Agreement (the “Notice Provision”); provided, however, that the Arbitration Notice may not be given
by email or fax. Arbitration will be deemed initiated as of the date that the Arbitration Notice is deemed delivered to such other party
under the Notice Provision (the “Service Date”). After the Service Date, information may be delivered, and notices
may be given, by email or fax pursuant to the Notice Provision or any other method permitted thereunder. The Arbitration Notice must
describe the nature of the controversy, the remedies sought, and the election to commence Arbitration proceedings. All Claims in the
Arbitration Notice must be pleaded consistent with the Utah Rules of Civil Procedure.
4.2 Selection
and Payment of Arbitrator.
(a) Within ten (10) calendar
days after the Service Date, Investor shall select and submit to Company the names of three (3) arbitrators that are designated
as “neutrals” or qualified arbitrators by Utah ADR Services (http://www.utahadrservices.com) (such three (3) designated
persons hereunder are referred to herein as the “Proposed Arbitrators”). For the avoidance of doubt, each Proposed
Arbitrator must be qualified as a “neutral” with Utah ADR Services. Within five (5) calendar days after Investor has
submitted to Company the names of the Proposed Arbitrators, Company must select, by written notice to Investor, one (1) of the Proposed
Arbitrators to act as the arbitrator for the parties under these Arbitration Provisions. If Company fails to select one of the Proposed
Arbitrators in writing within such 5-day period, then Investor may select the arbitrator from the Proposed Arbitrators by providing written
notice of such selection to Company.
(b) If Investor fails
to submit to Company the Proposed Arbitrators within ten (10) calendar days after the Service Date pursuant to subparagraph (a) above,
then Company may at any time prior to Investor so designating the Proposed Arbitrators, identify the names of three (3) arbitrators
that are designated as “neutrals” or qualified arbitrators by Utah ADR Service by written notice to Investor. Investor may
then, within five (5) calendar days after Company has submitted notice of its Proposed Arbitrators to Investor, select, by written
notice to Company, one (1) of the Proposed Arbitrators to act as the arbitrator for the parties under these Arbitration Provisions.
If Investor fails to select in writing and within such 5-day period one (1) of the three (3) Proposed Arbitrators selected
by Company, then Company may select the arbitrator from its three (3) previously selected Proposed Arbitrators by providing written
notice of such selection to Investor.
(c) If a Proposed Arbitrator
chosen to serve as arbitrator declines or is otherwise unable to serve as arbitrator, then the party that selected such Proposed Arbitrator
may select one (1) of the other two (2) Proposed Arbitrators within three (3) calendar days of the date the chosen Proposed
Arbitrator declines or notifies the parties he or she is unable to serve as arbitrator. If all three (3) Proposed Arbitrators decline
or are otherwise unable to serve as arbitrator, then the arbitrator selection process shall begin again in accordance with this Paragraph
4.2.
(d) The date that the
Proposed Arbitrator selected pursuant to this Paragraph 4.2 agrees in writing (including via email) delivered to both parties to serve
as the arbitrator hereunder is referred to herein as the “Arbitration Commencement Date”. If an arbitrator resigns
or is unable to act during the Arbitration, a replacement arbitrator shall be chosen in accordance with this Paragraph 4.2 to continue
the Arbitration. If Utah ADR Services ceases to exist or to provide a list of neutrals and there is no successor thereto, then the arbitrator
shall be selected under then prevailing rules of the American Arbitration Association.
(e) Subject to Paragraph
4.10 below, the cost of the arbitrator must be paid equally by both parties. Subject to Paragraph 4.10 below, if one party refuses or
fails to pay its portion of the arbitrator fee, then the other party can advance such unpaid amount (subject to the accrual of Default
Interest thereupon), with such amount being added to or subtracted from, as applicable, the Arbitration Award.
4.3 Applicability
of Certain Utah Rules. The parties agree that the Arbitration shall be conducted generally in accordance with the Utah Rules of
Civil Procedure and the Utah Rules of Evidence. More specifically, the Utah Rules of Civil Procedure shall apply, without limitation,
to the filing of any pleadings, motions or memoranda, the conducting of discovery, and the taking of any depositions. The Utah Rules of
Evidence shall apply to any hearings, whether telephonic or in person, held by the arbitrator. Notwithstanding the foregoing, it is the
parties’ intent that the incorporation of such rules will in no event supersede these Arbitration Provisions. In the event
of any conflict between the Utah Rules of Civil Procedure or the Utah Rules of Evidence and these Arbitration Provisions, these
Arbitration Provisions shall control.
4.4 Answer
and Default. An answer and any counterclaims to the Arbitration Notice shall be required to be delivered to the party initiating
the Arbitration within twenty (20) calendar days after the Arbitration Commencement Date. If an answer is not delivered by the required
deadline, the arbitrator must provide written notice to the defaulting party stating that the arbitrator will enter a default award against
such party if such party does not file an answer within five (5) calendar days of receipt of such notice. If an answer is not filed
within the five (5) day extension period, the arbitrator must render a default award, consistent with the relief requested in the
Arbitration Notice, against a party that fails to submit an answer within such time period.
4.5 Related
Litigation. The party that delivers the Arbitration Notice to the other party shall have the option to also commence concurrent legal
proceedings with any state or federal court sitting in Salt Lake County, Utah (“Litigation Proceedings”), subject
to the following: (a) the complaint in the Litigation Proceedings is to be substantially similar to the claims set forth in the
Arbitration Notice, provided that an additional cause of action to compel arbitration will also be included therein, (b) so long
as the other party files an answer to the complaint in the Litigation Proceedings and an answer to the Arbitration Notice, the Litigation
Proceedings will be stayed pending an Arbitration Award (or Appeal Panel Award (defined below), as applicable) hereunder, (c) if
the other party fails to file an answer in the Litigation Proceedings or an answer in the Arbitration proceedings, then the party initiating
Arbitration shall be entitled to a default judgment consistent with the relief requested, to be entered in the Litigation Proceedings,
and (d) any legal or procedural issue arising under the Arbitration Act that requires a decision of a court of competent jurisdiction
may be determined in the Litigation Proceedings. Any award of the arbitrator (or of the Appeal Panel (defined below)) may be entered
in such Litigation Proceedings pursuant to the Arbitration Act. In the event either party successfully petitions a court to compel arbitration,
the losing party in such action shall be required to pay the prevailing party’s reasonable attorneys’ fees and costs incurred
in connection with such action.
4.6 Discovery.
Pursuant to Section 118(8) of the Arbitration Act, the parties agree that discovery shall be conducted as follows:
(a) Written discovery
will only be allowed if the likely benefits of the proposed written discovery outweigh the burden or expense thereof, and the written
discovery sought is likely to reveal information that will satisfy a specific element of a claim or defense already pleaded in the Arbitration.
The party seeking written discovery shall always have the burden of showing that all of the standards and limitations set forth in these
Arbitration Provisions are satisfied. The scope of discovery in the Arbitration proceedings shall also be limited as follows:
(i) To
facts directly connected with the transactions contemplated by the Agreement.
(ii) To
facts and information that cannot be obtained from another source or in another manner that is more convenient, less burdensome or less
expensive than in the manner requested.
(b) No party shall be
allowed (i) more than fifteen (15) interrogatories (including discrete subparts), (ii) more than fifteen (15) requests for
admission (including discrete subparts), (iii) more than ten (10) document requests (including discrete subparts), or (iv) more
than three (3) depositions (excluding expert depositions) for a maximum of seven (7) hours per deposition. The costs associated
with depositions will be borne by the party taking the deposition. The party defending the deposition will submit a notice to the party
taking the deposition of the estimated attorneys’ fees that such party expects to incur in connection with defending the deposition.
If the party defending the deposition fails to submit an estimate of attorneys’ fees within five (5) calendar days of its
receipt of a deposition notice, then such party shall be deemed to have waived its right to the estimated attorneys’ fees. The
party taking the deposition must pay the party defending the deposition the estimated attorneys’ fees prior to taking the deposition,
unless such obligation is deemed to be waived as set forth in the immediately preceding sentence. If the party taking the deposition
believes that the estimated attorneys’ fees are unreasonable, such party may submit the issue to the arbitrator for a decision.
All depositions will be taken in Utah.
(c) All discovery requests
(including document production requests included in deposition notices) must be submitted in writing to the arbitrator and the other
party. The party submitting the written discovery requests must include with such discovery requests a detailed explanation of how the
proposed discovery requests satisfy the requirements of these Arbitration Provisions and the Utah Rules of Civil Procedure. The
receiving party will then be allowed, within five (5) calendar days of receiving the proposed discovery requests, to submit to the
arbitrator an estimate of the attorneys’ fees and costs associated with responding to such written discovery requests and a written
challenge to each applicable discovery request. After receipt of an estimate of attorneys’ fees and costs and/or challenge(s) to
one or more discovery requests, consistent with subparagraph (c) above, the arbitrator will within three (3) calendar days
make a finding as to the likely attorneys’ fees and costs associated with responding to the discovery requests and issue an order
that (i) requires the requesting party to prepay the attorneys’ fees and costs associated with responding to the discovery
requests, and (ii) requires the responding party to respond to the discovery requests as limited by the arbitrator within twenty-five
(25) calendar days of the arbitrator’s finding with respect to such discovery requests. If a party entitled to submit an estimate
of attorneys’ fees and costs and/or a challenge to discovery requests fails to do so within such 5-day period, the arbitrator will
make a finding that (A) there are no attorneys’ fees or costs associated with responding to such discovery requests, and (B) the
responding party must respond to such discovery requests (as may be limited by the arbitrator) within twenty-five (25) calendar days
of the arbitrator’s finding with respect to such discovery requests. Any party submitting any written discovery requests, including
without limitation interrogatories, requests for production subpoenas to a party or a third party, or requests for admissions, must prepay
the estimated attorneys’ fees and costs, before the responding party has any obligation to produce or respond to the same, unless
such obligation is deemed waived as set forth above.
(d) In order to allow
a written discovery request, the arbitrator must find that the discovery request satisfies the standards set forth in these Arbitration
Provisions and the Utah Rules of Civil Procedure. The arbitrator must strictly enforce these standards. If a discovery request does
not satisfy any of the standards set forth in these Arbitration Provisions or the Utah Rules of Civil Procedure, the arbitrator
may modify such discovery request to satisfy the applicable standards, or strike such discovery request in whole or in part.
(e) Each party may submit
expert reports (and rebuttals thereto), provided that such reports must be submitted within sixty (60) days of the Arbitration Commencement
Date. Each party will be allowed a maximum of two (2) experts. Expert reports must contain the following: (i) a complete statement
of all opinions the expert will offer at trial and the basis and reasons for them; (ii) the expert’s name and qualifications,
including a list of all the expert’s publications within the preceding ten (10) years, and a list of any other cases in which
the expert has testified at trial or in a deposition or prepared a report within the preceding ten (10) years; and (iii) the
compensation to be paid for the expert’s report and testimony. The parties are entitled to depose any other party’s expert
witness one (1) time for no more than four (4) hours. An expert may not testify in a party’s case-in-chief concerning
any matter not fairly disclosed in the expert report.
4.7 Dispositive
Motions. Each party shall have the right to submit dispositive motions pursuant Rule 12 or Rule 56 of the Utah Rules of
Civil Procedure (a “Dispositive Motion”). The party submitting the Dispositive Motion may, but is not required to,
deliver to the arbitrator and to the other party a memorandum in support (the “Memorandum in Support”) of the Dispositive
Motion. Within seven (7) calendar days of delivery of the Memorandum in Support, the other party shall deliver to the arbitrator
and to the other party a memorandum in opposition to the Memorandum in Support (the “Memorandum in Opposition”). Within
seven (7) calendar days of delivery of the Memorandum in Opposition, as applicable, the party that submitted the Memorandum in Support
shall deliver to the arbitrator and to the other party a reply memorandum to the Memorandum in Opposition (“Reply Memorandum”).
If the applicable party shall fail to deliver the Memorandum in Opposition as required above, or if the other party fails to deliver
the Reply Memorandum as required above, then the applicable party shall lose its right to so deliver the same, and the Dispositive Motion
shall proceed regardless.
4.8 Confidentiality.
All information disclosed by either party (or such party’s agents) during the Arbitration process (including without limitation
information disclosed during the discovery process or any Appeal (defined below)) shall be considered confidential in nature. Each party
agrees not to disclose any confidential information received from the other party (or its agents) during the Arbitration process (including
without limitation during the discovery process or any Appeal) unless (a) prior to or after the time of disclosure such information
becomes public knowledge or part of the public domain, not as a result of any inaction or action of the receiving party or its agents,
(b) such information is required by a court order, subpoena or similar legal duress to be disclosed if such receiving party has
notified the other party thereof in writing and given it a reasonable opportunity to obtain a protective order from a court of competent
jurisdiction prior to disclosure, or (c) such information is disclosed to the receiving party’s agents, representatives and
legal counsel on a need to know basis who each agree in writing not to disclose such information to any third party. Pursuant to Section 118(5) of
the Arbitration Act, the arbitrator is hereby authorized and directed to issue a protective order to prevent the disclosure of privileged
information and confidential information upon the written request of either party.
4.9 Authorization;
Timing; Scheduling Order. Subject to all other sections of these Arbitration Provisions, the parties hereby authorize and direct
the arbitrator to take such actions and make such rulings as may be necessary to carry out the parties’ intent for the Arbitration
proceedings to be efficient and expeditious. Pursuant to Section 120 of the Arbitration Act, the parties hereby agree that an Arbitration
Award must be made within one hundred twenty (120) calendar days after the Arbitration Commencement Date. The arbitrator is hereby authorized
and directed to hold a scheduling conference within ten (10) calendar days after the Arbitration Commencement Date in order to establish
a scheduling order with various binding deadlines for discovery, expert testimony, and the submission of documents by the parties to
enable the arbitrator to render a decision prior to the end of such 120-day period.
4.10 Relief.
The arbitrator shall have the right to award or include in the Arbitration Award (or in a preliminary ruling) any relief which the arbitrator
deems proper under the circumstances, including, without limitation, specific performance and injunctive relief, provided that the arbitrator
may not award exemplary or punitive damages.
4.11 Fees
and Costs. As part of the Arbitration Award, the arbitrator is hereby directed to require the losing party (the party being awarded
the least amount of money by the arbitrator, which, for the avoidance of doubt, shall be determined without regard to any statutory fines,
penalties, fees, or other charges awarded to any party) to (a) pay the full amount of any unpaid costs and fees of the Arbitration,
and (b) reimburse the prevailing party for all reasonable attorneys’ fees, arbitrator costs and fees, deposition costs, other
discovery costs, and other expenses, costs or fees paid or otherwise incurred by the prevailing party in connection with the Arbitration.
4.12 Motion
to Vacate. Following the entry of the Arbitration Award, if either party desires to file a Motion to Vacate the Arbitration Award
with a court in Salt Lake County, Utah, it must do so within the earlier of: (a) thirty (30) days of entry of the Arbitration Award;
and (b) in response to the prevailing party’s Motion to Confirm the Arbitration Award.
5. Arbitration
Appeal.
5.1 Initiation
of Appeal. Following the entry of the Arbitration Award, either party (the “Appellant”) shall have a period of
thirty (30) calendar days in which to notify the other party (the “Appellee”), in writing, that the Appellant elects
to appeal (the “Appeal”) the Arbitration Award (such notice, an “Appeal Notice”) to a panel of
arbitrators as provided in Paragraph 5.2 below. The date the Appellant delivers an Appeal Notice to the Appellee is referred to herein
as the “Appeal Date”. The Appeal Notice must be delivered to the Appellee in accordance with the provisions of Paragraph
4.1 above with respect to delivery of an Arbitration Notice. In addition, together with delivery of the Appeal Notice to the Appellee,
the Appellant must also pay for (and provide proof of such payment to the Appellee together with delivery of the Appeal Notice) a bond
in the amount of 110% of the sum the Appellant owes to the Appellee as a result of the Arbitration Award the Appellant is appealing.
In the event an Appellant delivers an Appeal Notice to the Appellee (together with proof of payment of the applicable bond) in compliance
with the provisions of this Paragraph 5.1, the Appeal will occur as a matter of right and, except as specifically set forth herein, will
not be further conditioned. In the event a party does not deliver an Appeal Notice (along with proof of payment of the applicable bond)
to the other party within the deadline prescribed in this Paragraph 5.1, such party shall lose its right to appeal the Arbitration Award.
The Arbitration Award will be considered final until the Appeal Notice has been properly delivered and the applicable appeal bond has
been posted (along with proof of payment of the applicable bond). The parties acknowledge and agree that any Appeal shall be deemed part
of the parties’ agreement to arbitrate for purposes of these Arbitration Provisions and the Arbitration Act.
5.2 Selection
and Payment of Appeal Panel. In the event an Appellant delivers an Appeal Notice to the Appellee (together with proof of payment
of the applicable bond) in compliance with the provisions of Paragraph 5.1 above, the Appeal will be heard by a three (3) person
arbitration panel (the “Appeal Panel”).
(a) Within
ten (10) calendar days after the Appeal Date, the Appellee shall select and submit to the Appellant the names of five (5) arbitrators
that are designated as “neutrals” or qualified arbitrators by Utah ADR Services (http://www.utahadrservices.com) (such
five (5) designated persons hereunder are referred to herein as the “Proposed Appeal Arbitrators”). For the avoidance
of doubt, each Proposed Appeal Arbitrator must be qualified as a “neutral” with Utah ADR Services, and shall not be the arbitrator
who rendered the Arbitration Award being appealed (the “Original Arbitrator”). Within five (5) calendar days
after the Appellee has submitted to the Appellant the names of the Proposed Appeal Arbitrators, the Appellant must select, by written
notice to the Appellee, three (3) of the Proposed Appeal Arbitrators to act as the members of the Appeal Panel. If the Appellant
fails to select three (3) of the Proposed Appeal Arbitrators in writing within such 5-day period, then the Appellee may select such
three (3) arbitrators from the Proposed Appeal Arbitrators by providing written notice of such selection to the Appellant.
(b) If
the Appellee fails to submit to the Appellant the names of the Proposed Appeal Arbitrators within ten (10) calendar days after the
Appeal Date pursuant to subparagraph (a) above, then the Appellant may at any time prior to the Appellee so designating the Proposed
Appeal Arbitrators, identify the names of five (5) arbitrators that are designated as “neutrals” or qualified arbitrators
by Utah ADR Service (none of whom may be the Original Arbitrator) by written notice to the Appellee. The Appellee may then, within five
(5) calendar days after the Appellant has submitted notice of its selected arbitrators to the Appellee, select, by written notice
to the Appellant, three (3) of such selected arbitrators to serve on the Appeal Panel. If the Appellee fails to select in writing
within such 5-day period three (3) of the arbitrators selected by the Appellant to serve as the members of the Appeal Panel, then
the Appellant may select the three (3) members of the Appeal Panel from the Appellant’s list of five (5) arbitrators
by providing written notice of such selection to the Appellee.
(c) If
a selected Proposed Appeal Arbitrator declines or is otherwise unable to serve, then the party that selected such Proposed Appeal Arbitrator
may select one (1) of the remaining designated Proposed Appeal Arbitrators within three (3) calendar days of the date a chosen
Proposed Appeal Arbitrator declines or notifies the parties he or she is unable to serve as an arbitrator. If at least three (3) of
the five (5) designated Proposed Appeal Arbitrators decline or are otherwise unable to serve, then the Proposed Appeal Arbitrator
selection process shall begin again in accordance with this Paragraph 5.2; provided, however, that any Proposed Appeal Arbitrators
who have already agreed to serve shall remain on the Appeal Panel.
(d) The
date that all three (3) Proposed Appeal Arbitrators selected pursuant to this Paragraph 5.2 agree in writing (including via email)
delivered to both the Appellant and the Appellee to serve as members of the Appeal Panel hereunder is referred to herein as the “Appeal
Commencement Date”. No later than five (5) calendar days after the Appeal Commencement Date, the Appellee shall designate
in writing (including via email) to the Appellant and the Appeal Panel the name of one (1) of the three (3) members of the
Appeal Panel to serve as the lead arbitrator in the Appeal proceedings. Each member of the Appeal Panel shall be deemed an arbitrator
for purposes of these Arbitration Provisions and the Arbitration Act, provided that, in conducting the Appeal, the Appeal Panel may only
act or make determinations upon the approval or vote of no less than the majority vote of its members, as announced or communicated by
the lead arbitrator on the Appeal Panel. If an arbitrator on the Appeal Panel ceases or is unable to act during the Appeal proceedings,
a replacement arbitrator shall be chosen in accordance with Paragraph 5.2 above to continue the Appeal as a member of the Appeal Panel.
If Utah ADR Services ceases to exist or to provide a list of neutrals, then the arbitrators for the Appeal Panel shall be selected under
the then prevailing rules of the American Arbitration Association.
(e) Subject
to Paragraph 5.7 below, the cost of the Appeal Panel must be paid entirely by the Appellant.
5.3 Appeal
Procedure. The Appeal will be deemed an appeal of the entire Arbitration Award. In conducting the Appeal, the Appeal Panel shall
conduct a de novo review of all Claims described or otherwise set forth in the Arbitration Notice. Subject to the foregoing and all other
provisions of this Paragraph 5, the Appeal Panel shall conduct the Appeal in a manner the Appeal Panel considers appropriate for a fair
and expeditious disposition of the Appeal, may hold one or more hearings and permit oral argument, and may review all previous evidence
and discovery, together with all briefs, pleadings and other documents filed with the Original Arbitrator (as well as any documents filed
with the Appeal Panel pursuant to Paragraph 5.4(a) below). Notwithstanding the foregoing, in connection with the Appeal, the Appeal
Panel shall not permit the parties to conduct any additional discovery or raise any new Claims to be arbitrated, shall not permit new
witnesses or affidavits, and shall not base any of its findings or determinations on the Original Arbitrator’s findings or the
Arbitration Award.
5.4 Timing.
(a) Within
seven (7) calendar days of the Appeal Commencement Date, the Appellant (i) shall deliver or cause to be delivered to the Appeal
Panel copies of the Appeal Notice, all discovery conducted in connection with the Arbitration, and all briefs, pleadings and other documents
filed with the Original Arbitrator (which material Appellee shall have the right to review and supplement if necessary), and (ii) may,
but is not required to, deliver to the Appeal Panel and to the Appellee a Memorandum in Support of the Appellant’s arguments concerning
or position with respect to all Claims, counterclaims, issues, or accountings presented or pleaded in the Arbitration. Within seven (7) calendar
days of the Appellant’s delivery of the Memorandum in Support, as applicable, the Appellee shall deliver to the Appeal Panel and
to the Appellant a Memorandum in Opposition to the Memorandum in Support. Within seven (7) calendar days of the Appellee’s
delivery of the Memorandum in Opposition, as applicable, the Appellant shall deliver to the Appeal Panel and to the Appellee a Reply
Memorandum to the Memorandum in Opposition. If the Appellant shall fail to substantially comply with the requirements of clause (i) of
this subparagraph (a), the Appellant shall lose its right to appeal the Arbitration Award, and the Arbitration Award shall be final.
If the Appellee shall fail to deliver the Memorandum in Opposition as required above, or if the Appellant shall fail to deliver the Reply
Memorandum as required above, then the Appellee or the Appellant, as the case may be, shall lose its right to so deliver the same, and
the Appeal shall proceed regardless.
(b) Subject
to subparagraph (a) above, the parties hereby agree that the Appeal must be heard by the Appeal Panel within thirty (30) calendar
days of the Appeal Commencement Date, and that the Appeal Panel must render its decision within thirty (30) calendar days after the Appeal
is heard (and in no event later than sixty (60) calendar days after the Appeal Commencement Date).
5.5 Appeal
Panel Award. The Appeal Panel shall issue its decision (the “Appeal Panel Award”) through the lead arbitrator
on the Appeal Panel. Notwithstanding any other provision contained herein, the Appeal Panel Award shall (a) supersede in its entirety
and make of no further force or effect the Arbitration Award (provided that any protective orders issued by the Original Arbitrator shall
remain in full force and effect), (b) be final and binding upon the parties, with no further rights of appeal, (c) be the sole
and exclusive remedy between the parties regarding any Claims, counterclaims, issues, or accountings presented or pleaded in the Arbitration,
and (d) be promptly payable in United States dollars free of any tax, deduction or offset (with respect to monetary awards). Any
costs or fees, including without limitation reasonable attorneys’ fees, incurred in connection with or incident to enforcing the
Appeal Panel Award shall, to the maximum extent permitted by law, be charged against the party resisting such enforcement. The Appeal
Panel Award shall include Default Interest (with respect to monetary awards) at the rate specified in the Note for Default Interest both
before and after the Appeal Panel Award. Judgment upon the Appeal Panel Award will be entered and enforced by a state or federal court
sitting in Salt Lake County, Utah.
5.6 Relief.
The Appeal Panel shall have the right to award or include in the Appeal Panel Award any relief which the Appeal Panel deems proper
under the circumstances, including, without limitation, specific performance and injunctive relief, provided that the Appeal Panel may
not award exemplary or punitive damages.
5.7 Fees
and Costs. As part of the Appeal Panel Award, the Appeal Panel is hereby directed to require the losing party (the party being awarded
the least amount of money by the arbitrator, which, for the avoidance of doubt, shall be determined without regard to any statutory fines,
penalties, fees, or other charges awarded to any party) to (a) pay the full amount of any unpaid costs and fees of the Arbitration
and the Appeal Panel, and (b) reimburse the prevailing party (the party being awarded the most amount of money by the Appeal Panel,
which, for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties, fees, or other charges awarded
to any party) the reasonable attorneys’ fees, arbitrator and Appeal Panel costs and fees, deposition costs, other discovery costs,
and other expenses, costs or fees paid or otherwise incurred by the prevailing party in connection with the Arbitration (including without
limitation in connection with the Appeal).
6. Miscellaneous.
6.1 Severability.
If any part of these Arbitration Provisions is found to violate or be illegal under applicable law, then such provision shall be
modified to the minimum extent necessary to make such provision enforceable under applicable law, and the remainder of the Arbitration
Provisions shall remain unaffected and in full force and effect.
6.2 Governing
Law. These Arbitration Provisions shall be governed by the laws of the State of Utah without regard to the conflict of laws principles
therein.
6.3 Interpretation.
The headings of these Arbitration Provisions are for convenience of reference only and shall not form part of, or affect the interpretation
of, these Arbitration Provisions.
6.4 Waiver.
No waiver of any provision of these Arbitration Provisions shall be effective unless it is in the form of a writing signed by the party
granting the waiver.
6.5 Time
is of the Essence. Time is expressly made of the essence with respect to each and every provision of these Arbitration Provisions.
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EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2623556d1_ex10-2.htm · Sequence: 5
Exhibit 10.2
VOTING AGREEMENT
This Voting Agreement (this
“Agreement”) is entered into as of August 18, 2026 (the “Effective Date”), by and among Streeterville
Capital, LLC, a Utah limited liability company (“Investor”), and each of the undersigned shareholders of Company (as
defined below) (each, a “Major Stockholder,” and collectively, the “Major Stockholders”). Capitalized
terms used in this Agreement without definition shall have the meanings given to them in the Purchase Agreement.
A. Investor
and Datavault AI Inc., a Delaware corporation (“Company”), are parties to that certain Securities Purchase Agreement
of even date herewith (the “Purchase Agreement”), pursuant to which Company issued to Investor that certain Convertible
Promissory Note in the original principal amount of $25,030,000.00 (the “Note”, and together with the Purchase Agreement
and all other documents entered into in conjunction therewith, the “Transaction Documents”).
B. Pursuant
to the Purchase Agreement, Company agreed to seek stockholder approval (the “Approval”) to issue Common Shares under
the Transaction Documents to Investor in excess of the requirements of Nasdaq Listing Rule 5635(d) (“Exchange Cap”),
which Approval the applicable Major Stockholders desire to vote in favor of, all pursuant to the terms and conditions hereof.
NOW, THEREFORE, for good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Recitals
and Definitions. Each of the parties hereto acknowledges and agrees that the recitals set forth above in this Agreement are true
and accurate, are contractual in nature, and are hereby incorporated into and made a part of this Agreement.
2. Voting.
Each Major Stockholder hereby covenants and agrees to vote all Common Shares and any shares of Company preferred stock now or hereafter
held by it/him/her in favor of the Approval and the issuance of Common Shares to Investor in excess of the requirements of the Exchange
Cap at such times and in such places and in such agreements and documents as Company and Investor may deem appropriate in each instance
that such Approval is sought, and to approve the Transaction Documents and the transaction evidenced thereby in each instance that such
Approval is sought. Each Major Stockholder hereby grants to Investor an irrevocable proxy, coupled with an interest, to vote all Common
Shares or preferred shares of Company held by such Major Stockholder in favor of the Approval in the event such Major Stockholder fails
to vote as required by this Section 2.
3. Representations,
Warranties and Agreements. In order to induce Investor to enter into this Agreement, each Major Stockholder, for itself/himself/herself,
and for their affiliates, successors and assigns, hereby acknowledge, represent, warrant and agree as follows:
(a) Each
Major Stockholder has full power and authority to enter into this Agreement and to incur and perform all obligations and covenants contained
herein, all of which have been duly authorized by all proper and necessary action, as applicable. No consent, approval, filing or registration
with or notice to any governmental authority is required as a condition to the validity of this Agreement or the performance of any of
the obligations of any Major Stockholder hereunder.
(b) All
understandings, representations, warranties and recitals contained or expressed in this Agreement are true, accurate, complete, and correct
in all respects; and no such understanding, representation, warranty, or recital fails or omits to state or otherwise disclose any material
fact or information necessary to prevent such understanding, representation, warranty, or recital from being misleading. Each Major Stockholder
acknowledges and agrees that Investor has been induced in part to enter into this Agreement based upon Investor’s justifiable reliance
on the truth, accuracy, and completeness of all understandings, representations, warranties, and recitals contained in this Agreement.
There is no fact known to any Major Stockholder or which should be known to any Major Stockholder which such Major Stockholder has not
disclosed to Investor on or prior to the date hereof which would or could materially and adversely affect the understandings of Investor
expressed in this Agreement or any representation, warranty, or recital contained in this Agreement.
(c) Each
Major Stockholder hereby acknowledge that it/he/she has freely and voluntarily entered into this Agreement after an adequate opportunity
and sufficient period of time to review, analyze, and discuss (i) all terms and conditions of this Agreement, (ii) any and
all other documents executed and delivered in connection with the transactions contemplated by this Agreement, and (iii) all factual
and legal matters relevant to this Agreement and/or any and all such other documents, with counsel freely and independently selected
by any Major Stockholder (or had the opportunity to be represented by counsel). Each Major Stockholder further acknowledges and agrees
that it/he/she has actively and with full understanding participated in the negotiation of this Agreement and all other documents executed
and delivered in connection with this Agreement after consultation and review with its counsel (or had the opportunity to be represented
by counsel), that all of the terms and conditions of this Agreement and the other documents executed and delivered in connection with
this Agreement have been negotiated at arm’s-length, and that this Agreement and all such other documents have been negotiated,
prepared, and executed without fraud, duress, undue influence, or coercion of any kind or nature whatsoever having been exerted by or
imposed upon any party by any other party. No provision of this Agreement or such other documents shall be construed against or interpreted
to the disadvantage of any party by any court or other governmental or judicial authority by reason of such party having or being deemed
to have structured, dictated, or drafted such provision.
(d) There
is no statute, regulation, rule, order or judgment and no provision of any mortgage, indenture, contract or other agreement binding on
any Major Stockholder, which would prohibit or cause a default under or in any way prevent the execution, delivery, performance, compliance
or observance of any of the terms and conditions of this Agreement and/or any of the other documents executed and delivered in connection
with this Agreement.
4. Arbitration.
Each party agrees that any dispute arising out of or relating to this Agreement shall be subject to the Arbitration Provisions (as defined
in the Purchase Agreement).
5. Governing
Law; Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah without regard to
the principles of conflict of laws. Each party agrees that the proper venue for any dispute arising out of or relating to this Agreement
shall be determined in accordance with the provisions of the Purchase Agreement. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT/HE/SHE MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR
IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
2
6. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic
signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
7. Attorneys’
Fees. In the event of any arbitration or action at law or in equity to enforce or interpret the terms of this Agreement, the parties
agree that the prevailing party shall be entitled to an additional award of the full amount of the attorneys’ fees and expenses
paid by such prevailing party in connection with the arbitration, litigation and/or dispute without reduction or apportionment based
upon the individual claims or defenses giving rise to the fees and expenses. Nothing herein shall restrict or impair an arbitrator’s
or a court’s power to award fees and expenses for frivolous or bad faith pleading.
8. Severability.
If any part of this Agreement is construed to be in violation of any law, such part shall be modified to achieve the objective of the
parties to the fullest extent permitted and the balance of this Agreement shall remain in full force and effect.
9. Entire
Agreement. This Agreement, together with the Transaction Documents, and all other documents referred to herein, supersedes all other
prior oral or written agreements among Company, the Major Stockholders, and Investor, and their affiliates and persons acting on their
behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither
Investor nor Company nor any Major Stockholder makes any representation, warranty, covenant or undertaking with respect to such matters.
10. No
Reliance. Each Major Stockholder acknowledge and agree that neither Investor nor any of its officers, members, managers, representatives
or agents has made any representations or warranties to any Major Stockholder or any of their agents, representatives, officers, directors,
stockholders, or employees except as expressly set forth in this Agreement and the Transaction Documents and, in making their decision
to enter into the transactions contemplated by this Agreement and the Transaction Documents, each Major Stockholder is not relying on
any representation, warranty, covenant or promise of Investor or its officers, directors, members, managers, agents or representatives
other than as set forth in this Agreement and in the Transaction Documents.
11. Liquidated
Damages. Investor and the Major Stockholders agree that in the event all or any Major Stockholder fails to comply with any of the
terms or provisions of this Agreement, Investor’s damages would be uncertain and difficult (if not impossible) to accurately
estimate. Accordingly, Investor and the Major Stockholders agree that in the event of such a breach of default, Investor will
be entitled to liquidated damages of $25,000,000.00 (the purchase price for the Note).
3
12. Amendments.
This Agreement may be amended, modified, or supplemented only by written agreement of the parties. No provision of this Agreement may
be waived except in writing signed by the party against whom such waiver is sought to be enforced.
13. Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
This Agreement or any of the severable rights and obligations inuring to the benefit of or to be performed by Investor hereunder may
be assigned by Investor to a third party, including its financing sources, in whole or in part. The Major Stockholders may not assign
this Agreement or any of their obligations herein without the prior written consent of Investor.
14. Time
is of Essence. Time is of the essence with respect to each and every provision of this Agreement.
15. Notices.
Unless otherwise specifically provided for herein, all notices, demands or requests required or permitted under this Agreement to be
given to Company, any Major Stockholder, or Investor shall be given as set forth in the “Notices” section of the Purchase
Agreement, except with respect to any Major Stockholder to the places and people as set forth in writing to Investor.
16. Further
Assurances. Each party shall do and perform or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
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4
IN WITNESS WHEREOF, the undersigned have executed
this Agreement as of the date first set forth above.
INVESTOR:
STREETERVILLE CAPITAL, LLC
By:
/s/ John Fife
John Fife, President
MAJOR STOCKHOLDERS:
EOS TECHNOLOGY HOLDINGS, INC., a Delaware corporation
By:
/s/ Nathaniel Bradley
Nathaniel Bradley, Chief Executive Officer
NATHANIEL BRADLEY
/s/ Nathaniel Bradley
Nathaniel Bradley
SONIA CHOI
/s/ Sonia Choi
Sonia Choi
BRETT MOYER
/s/ Brett Moyer
Brett Moyer
[Signature Page to Voting Agreement]
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