Exhibit 10.12


 


AMENDMENT
TO Series D TRANSACTION DOCUMENTS


 


This AMENDMENT
TO Series D TRANSACTION DOCUMENTS (this “Amendment”) dated as
of March [__], 2018, and effective as of February 28, 2018 (the “Effective
Date”) is entered into by Summit Semiconductor, Inc., a Delaware corporation (the “Company”), and
[HOLDER] or its assigns (the “Holder”).


 


Recitals


 


WHEREAS, the
Company and the Holder (collectively, the “Parties”) entered that certain Securities Purchase Agreement, dated
[________], 201[__], as amended, modified
or supplemented from time to time in accordance with its terms (the “Agreement”);


 


WHEREAS, pursuant to
the Agreement, the Holder beneficially owns and holds (i) that certain Senior Secured Original Issue Discount Convertible Note,
due February 28, 2018, as amended, modified or supplemented from time to time in accordance with its terms (the “Note”),
and (ii) that certain warrant, as amended, modified or supplemented from time to time in accordance with its terms (the “Warrant”),
to purchase [_______] common units of the Company (the “Warrant Units”);


 


WHEREAS, the Note and
Warrant were originally issued on [________], 201[__],
at which time the Company was a Delaware limited liability company;            


 


WHEREAS, the Company
converted from a Delaware limited liability company to a Delaware corporation effective December 31, 2017 (the “Corporate
Conversion”); and


 


WHEREAS, pursuant to
the Agreement, the Company and the Holder entered into that certain Security Agreement, dated [________],
201[__] (the “Security Agreement”; and together with the Agreement,
the Note, and the Warrant, the “Transaction Documents”);


 


WHEREAS, by the terms
of the Warrant, the number of Warrant Units would double if the Company did not consummate its initial public offering by June
1, 2017 (the “IPO Date”);


 


WHEREAS, the Holder
agreed to extend the IPO Date to February 28, 2018 (the “Extended IPO Date”);


 


WHEREAS, due to the
Corporate Conversion, the Warrant became exercisable into [_____] shares (the “Warrant
Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”);


 


WHEREAS, due to the
passing of the Extended IPO Date and pursuant to this Amendment, the Warrant Shares have doubled and the Warrant is now exercisable
into [______] shares of the Common Stock; and


 


WHEREAS, the
Parties desire that the Transaction Documents be amended to reflect the Corporate Conversion and modifications of certain provisions
of as specified below.


 




     

     


    

 


NOW, THEREFORE,
in consideration of the foregoing, and of the mutual representations, warranties, covenants, and agreements herein contained, the
Parties hereto agree as follows:


Agreement


 


Section 1.            Defined Terms.
Unless otherwise indicated herein, all terms which are capitalized but are not otherwise defined herein shall have the meaning
ascribed to them in the Transaction Documents.


 


Section 2.             General
Amendments to Transaction Documents.


 


I.            Wherever
the Company’s name appears as “Summit Semiconductor, LLC”, it shall be replaced with “Summit Semiconductor,
Inc.”


 


II.           Wherever
the phrase “Delaware limited liability company” appears, it shall be replaced with “Delaware corporation”.


 


III.          Wherever
the term “Common Unit” appears, it shall be replaced with “Common Stock”. Further, wherever appropriate,
the phrases “shares of” or “share of” shall precede “Common Stock”.


 


IV.         Wherever
the term “Conversion Units” appear, it shall be replaced with “Conversion Shares”.


 


V.          Wherever
the term “Warrant Units” appear, it shall be replaced with “Warrant Shares”.


 


VI.         Wherever
the terms “member” or “members” appears, each shall be replaced with “shareholder” or “shareholders”,
respectively.


 


VII.        Wherever
the term “certificate of formation” appears, it shall be replaced with “certificate of incorporation”.


 


VIII.       Wherever
the term “Operating Agreement” appears, it shall be either replaced with “Certificate of Incorporation”
or deleted in its entirety, as appropriate.


 


IX.        The
Company’s principal office and address for notice shall be modified to 6840 Via Del Oro Ste. 280, San Jose, CA 95119.


 


X.        Any
other modifications, additions, or deletions reasonably necessary to properly interpret any of the Transaction Documents to solely
reflect the Corporate Conversion shall be deemed amended hereby accordingly.


 




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Section 3.            Amendments
to Note.


 


I.           The
second paragraph of the Note is hereby amended and restated in its entirety as follows:


 


FOR VALUE RECEIVED, the Company
promises to pay to [________] or its registered assigns (the “Holder”),
or shall have paid pursuant to the terms hereunder, the principal sum of $[______]
on June 30, 2018 (the “Maturity Date”) or such earlier date as this Note is required or permitted to be repaid
as provided hereunder and to pay interest to the Holder on the aggregate then outstanding principal amount of this Note in accordance
with the provisions hereof. This Note is subject to the following additional provisions.


 


II.          Section
1 of the Note is hereby amended and restated in its entirety as follows:


 


Section 1.            Definitions.
For the purposes hereof, in addition to the terms defined elsewhere in this Note, (a) capitalized terms not otherwise defined
herein shall have the meanings set forth in the Exchange Agreement (as defined below) and (b) the following terms shall have
the following meanings:


 


“Bankruptcy
Event” means any of the following events: (a) the Company or any Significant Subsidiary (as such term is defined in Rule
1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company or
any Significant Subsidiary thereof, (b) there is commenced against the Company or any Significant Subsidiary thereof any such case
or proceeding that is not dismissed within 60 days after commencement, (c) the Company or any Significant Subsidiary thereof is
adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the
Company or any Significant Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial part
of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company or any Significant
Subsidiary thereof makes a general assignment for the benefit of creditors, (f) the Company or any Significant Subsidiary thereof
calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts or (g) the Company
or any Significant Subsidiary thereof, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence
in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.


 


“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or
any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to
close.


 


“Buy-In”
shall have the meaning set forth in Section 4(d)(iv).


 


“Common Stock”
means the common stock, par value $0.0001 per share, of the Company, and any other class of securities into which such securities
may hereafter be reclassified or changed.


 




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“Common Stock
Equivalents” means any securities of the Company or any of its subsidiaries which would entitle the holder thereof to
acquire at any time shares of Common Stock (as defined below), including, without limitation, any debt, preferred stock, rights,
options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles
the Holder to receive, Common Stock.


 


“Conversion”
shall have the meaning ascribed to such term in Section 4.


 


“Conversion
Date” shall have the meaning set forth in Section 4(a).


 


“Conversion
Price” shall have the meaning set forth in Section 4(c).


 


“Conversion
Shares” means, collectively, the Common Stock issuable upon conversion of this Note in accordance with the terms hereof.


 


“Event of
Default” shall have the meaning set forth in Section 6(a).


 


“New York
Courts” shall have the meaning set forth in Section 7(d).


 


“Note Register”
shall have the meaning set forth in Section 2.


 


“Notice of
Conversion” shall have the meaning set forth in Section 4(a).


 


“Original
Issue Date” means the date of the first issuance of the Notes, regardless of any transfers of any Note and regardless
of the number of instruments which may be issued to evidence such Notes.


 


“Purchase
Agreement” means the Securities Purchase Agreement, dated as of [________],
201[__] among the Company and the original Holders, as amended, modified or supplemented
from time to time in accordance with its terms.


 


“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.


 


“Share Delivery
Date” shall have the meaning set forth in Section 4(e)(ii).


 


“Trading Day”
means a day on which the principal Trading Market is open for trading.


 


“Trading Market”
means any of the following markets or exchanges on which the Common Stock (or an equivalent thereof) is listed or quoted for trading
on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market,
the New York Stock Exchange, the OTC Bulletin Board or the Pink OTC Markets (or any successors to any of the foregoing).


 




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III.         Section
2 of the Note is hereby amended and restated in its entirety as follows:


 


Section 2. Interest.
Commencing on March 1, 2018, and continuing on the first (1st) Trading Day of each successive month thereafter until
payment and/or conversion in full of the outstanding principal under this Note has been made, the Company shall owe to the Holder,
in kind, ten percent (10%) of the original principal amount of this Note, which such amounts shall be paid on or before the Maturity
Date.  Interest shall be calculated on the basis of a 360-day year, consisting of twelve (12), thirty (30) calendar day periods. 
All payments hereunder will be paid to the Person in whose name this Note is registered on the records of the Company regarding
registration and transfers of this Note (the “Note Register”). For the avoidance of doubt, the foregoing additionally
amounts owed by the Company to the Holder will not be paid to the Holder on such dates, but shall only be deemed earned on such
dates. For example, if the original principal amount of this Note is $100,000 and not repaid in full until the Maturity Date, then:
(1) on March 1, 2018, the Company shall owe to the Holder a total of $110,000; (2) on April 1, 2018, the Company shall owe to the
Holder under this Note a total of $120,000; (3) on May 1, 2018, the Company shall owe to the Holder under this Note a total of
$130,000; 4) on June 1, 2018, the Company shall owe to the Holder under this Note a total of $140,000; and (5) the Company shall
make such payments on or before the Maturity Date.


 


IV.         Section
4(c) of the Note is hereby amended and restated in its entirety as follows:


 


b) Conversion
Price. The “Conversion Price” in effect on a Conversion Date in connection with the Company’s initial
public offering of Common Stock (the “IPO”) shall be equal to the lesser of (i) (A) $4.50 or (ii) (A) the highest
price per share of Common Stock sold in the Company’s initial public offering, multiplied by (B) seventy-five percent (75%);
and on any other Conversion Date, the Conversion Price shall be $4.50. In the event the Company (i) issues a dividend or dividends
on Common Stock payable in shares of Common Stock or any Common Stock Equivalents (which, for avoidance of doubt, shall not include
any Common Stock issued by the Company upon conversion of, or payment of interest on, the Notes), (ii) subdivides outstanding Common
Stock into a larger number of Common Stock, (iii) combines (including by way of a reverse split) outstanding Common Stock into
a smaller number of shares of Common Stock or (iv) issues, in the event of a reclassification of Common Stock, any shares of Common
Stock, then the Conversion Price shall be adjusted by multiplying the Conversion Price by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding immediately before such event, and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section shall become effective
immediately after the record date for the determination of stockholders of the Company entitled to receive such distribution and
shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.


 


V.          Section
4(e)(ii) of the Note is hereby amended and restated in its entirety as follows:


 


ii.           Delivery
of Certificate Upon Conversion. The Company shall promptly deliver the, or cause to be delivered (the “Share Delivery
Date”), to the Holder a certificate or certificates representing the Conversion Shares representing the number of Conversion
Shares being acquired upon the conversion of this Note


 




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            Section 4.               Amendments
to Warrant.


 


I.           The
first paragraph of the Warrant is hereby amended and restated in its entirety as follows:


 


THIS COMMON STOCK PURCHASE WARRANT
(the “Warrant”) certifies that, for value received [HOLDER] or
its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth and in the Securities Purchase Agreement between the Company and the Holder (the “Purchase Agreement”),
at any time on or after the Original Issue Date and on or prior to the close of business on the fifth anniversary of the Original
Issue Date (the “Termination Date”) but not thereafter, to subscribe for and purchase from Summit Semiconductor,
Inc., a Delaware corporation (the “Company”), up to [_______]
shares of Common Stock (as subject to adjustment hereunder, the “Warrant Shares”). The purchase price of one
Warrant Share under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b)


 


II.          Section
2(b) of the Warrant is hereby amended and restated in its entirety as follows:


 


b)    Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $5.40 (the “Exercise Price”).


 


III.         Section
3(a) of the Warrant is hereby amended and restated in its entirety as follows:


 


a)   Intentionally
Omitted.


 


IV.         Section
3(b) is hereby added to the Warrant as follows:


 


b)   Intentionally
Omitted.


 


Section 5.             Ratifications;
Inconsistent Provisions; Severability. Except as otherwise expressly provided herein the Note, and the Warrant is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the Effective
Date, all references in the Note or the Warrant to “this Note” and “this Warrant”, respectively, as well
as “hereto”, “hereof”, “hereunder” or words of like import referring to the Note or Warrant,
as applicable, shall mean the Note or Warrant, as applicable and as amended by this Amendment. Notwithstanding the foregoing to
the contrary, to the extent that there is any inconsistency between the provisions of the Agreement, the Note, the Warrant, or
the other Transaction Documents, and this Amendment, the provisions of this Amendment shall control and be binding. In the event
and to the extent that any provision of this Amendment shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provisions of this Amendment, all of which shall remain fully enforceable
as set forth herein.


 




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            Section 6.                Acknowledgments.
The Holder acknowledges and agrees the Company is not default under the Note or any of the related Transaction Documents. As such,
this Amendment represents the compromise between the Parties and is not intended as an admission of any default, liability, fault,
claim, wrongdoing, or the like of or by the Company. The Company explicitly denies any and all liability with regard to any potential
claims that could be made by the Holder and the Holder acknowledges the foregoing.


 


Section 7.            Governing
Law. All questions concerning the construction, validity, enforcement and interpretation
of this Amendment (irrespective of the place where it is executed and delivered) shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof.  Each party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Amendment (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state
and federal courts sitting in the City of New York.  Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement
of this Amendment), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding.  Each of the Parties hereby irrevocably waive personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight
delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Amendment and agrees that
such service shall constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner permitted by law.   If either of the
Parties shall commence an action, suit or proceeding to enforce any provisions of the Amendment, the prevailing party in such action,
suit or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such action or proceeding.


 


Section 8.            Headings.
The headings contained herein are for convenience only, do not constitute a part of this Amendment and shall not be deemed to limit
or affect any of the provisions hereto.


 




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            Section 9.               Counterparts.
This Amendment may be executed in any number of counterparts, all of which will constitute one and the same instruments and shall
become effective when one or more counterparts have been signed by each of the Parties and delivered to the other party. Facsimile,
PFD, or other electronic transmission of any signed original document shall be deemed the same as delivery of an original.


 


[Signature page follows]


 




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IN WITNESS WHEREOF, the Company has
caused this Amendment to be executed as of the date first written above by its respective officers thereunto duly authorized.


 


 


	 	SUMMIT SEMICONDUCTOR, Inc.
	 	 	 	 
	 	By:	 
	 	 	Name: 	Brett Moyer
	 	 	Title: 	Chief Executive Officer


 


Acknowledged and Accepted as of
the date first written above:


 


[HOLDER]


 


	By: 	 	 
	 	Name:	 
	 	Title:	 


 




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