Exhibit 4.1




 


THIS NOTE HAS NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE
TO THE COMPANY. THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT SECURED BY SUCH SECURITIES.


 


SUMMIT WIRELESS TECHNOLOGIES, INC.


 


Form of
Senior Secured

Convertible Promissory

Note due March [__], 2022


 


	Note No.	$2,040,000.00










Dated: March [__], 2020 (the “Issuance Date”)


 


For value received,
SUMMIT WIRELESS TECHNOLOGIES, INC., a Delaware corporation (the “Maker” or the “Company”),
hereby promises to pay to the order of [______], a Delaware limited partnership (together with its successors and representatives,
the “Holder”), in accordance with the terms hereinafter provided, the principal amount of TWO MILLION FORTY
THOUSAND DOLLARS ($2,040,000.00) (the “Principal Amount”).


 


All payments under
or pursuant to this Senior Secured Convertible Promissory Note (this “Note”) shall be made in United States
Dollars in immediately available funds to the Holder at the address of the Holder set forth in the Purchase Agreement (as hereinafter
defined) or at such other place as the Holder may designate from time to time in writing to the Maker or by wire transfer of funds
to the Holder’s account, instructions for which are attached hereto as Exhibit A. The outstanding principal balance
of this Note shall be due and payable on March [__], 2022 (the “Maturity Date”) or at such earlier time as provided
herein; provided, that the Holder, in its sole discretion, may extend the Maturity Date to any date after the original Maturity
Date. In the event that the Maturity Date shall fall on Saturday or Sunday, such Maturity Date shall be the next succeeding Business
Day. All calculations made pursuant to this Note shall be rounded down to three decimal places.


 






     


     


    

 


ARTICLE
1


 


1.1             
Purchase Agreement. This Note has been executed and delivered pursuant to the Securities Purchase Agreement, dated
as of March [__], 2020 (as the same may be amended from time to time, the “Purchase Agreement”), by and between
the Maker and the Holder. Capitalized terms used and not otherwise defined herein shall have the meanings set forth for such terms
in the Purchase Agreement.


 


1.2             
Interest. Except as set forth in Section 2.2, this Note shall not bear interest.


 


1.3             
Prepayment.At any time after the Issuance Date, the Maker may repay all (but not less than all) of the Outstanding
Principal Amount upon at least ten (10) days’ written notice of the Holder (the “Prepayment Notice”).
If the Maker elects to prepay this Note pursuant to the provisions of this Section 1.3, the Holder shall have the right,
upon written notice to the Maker (a “Prepayment Conversion Notice”) within five (5) Business Days of the Holder’s
receipt of a Prepayment Notice, to convert up to thirty-three percent (33%) of the Principal Amount (the “Maximum Amount”)
at the Conversion Price (as defined below), in accordance with the provisions of Article 3, specifying the Principal Amount (up
to the Maximum Amount) that the Holder will convert. Upon delivery of a Prepayment Notice, the Maker irrevocably and unconditionally
agrees to, within five (5) Business Days of receiving a Prepayment Conversion Notice, and if no Prepayment Conversion Notice is
received, within ten (10) Business Days of delivery of a Prepayment Notice: (i) repay the Outstanding Principal Amount minus the
Principal Amount set forth in the Prepayment Conversion Notice and (ii) issue the applicable Conversion Shares to the Holder in
accordance with Article 3. The foregoing notwithstanding, the Maker may not deliver a Prepayment Notice with respect to any Outstanding
Principal Amount that is subject to a Conversion Notice delivered by the Holder in accordance with Article 3.


 


1.4             
Delisting from a Trading Market.If at any time the Common Stock ceases to be listed on a Trading Market, (i)
the Holder may deliver a demand for payment to the Company and, if such a demand is delivered, the Company shall, within ten (10)
Business Days following receipt of the demand for payment from the Holder, pay all of the Outstanding Principal Amount or (ii)
the Holder may, at its election, after the six-month anniversary of the Issuance Date or earlier if a Registration Statement covering
the Conversion Shares has been declared effective, upon notice to the Company in accordance with Section 5.1, convert
all or a portion of the Outstanding Principal Amount and the Conversion Price shall be adjusted to the lower of (A) the then-current
Conversion Price and (A) eighty percent (80%) of the average of the three (3) lowest daily VWAPs during the twenty (20) Trading
Days prior to delivery by the Holder of its notice of conversion pursuant to this Section 1.4, which price shall not be
lower than the Floor Price (as defined below).


 


1.5             
Payment on Non-Business Days. Whenever any payment to be made shall be due on a day which is not a Business Day,
such payment may be due on the next succeeding Business Day.


 


1.6             
Transfer. This Note may be transferred or sold, subject to the provisions of Section 5.8 of this Note, or
pledged, hypothecated or otherwise granted as security by the Holder.


 






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1.7             
Replacement. Upon receipt of a duly executed and notarized written statement from the Holder with respect to the
loss, theft or destruction of this Note (or any replacement hereof), or, in the case of a mutilation of this Note, upon surrender
and cancellation of such Note, the Maker shall issue a new Note, of like tenor and amount, in lieu of such lost, stolen, destroyed
or mutilated Note.


 


1.8             
Use of Proceeds. The Maker shall use the proceeds of this Note as set forth in the Purchase Agreement.


 


1.9             
Status of Note and Security Interest. The obligations of the Maker under this Note shall be senior to all other existing
Indebtedness and equity of the Company. Upon any Liquidation Event (as hereinafter defined), the Holder will be entitled to receive,
before any distribution or payment is made upon, or set apart with respect to, any Indebtedness of the Maker or any class of capital
stock of the Maker, an amount equal to the Outstanding Principal Amount. For purposes of this Note, “Liquidation Event”
means a liquidation pursuant to a filing of a petition for bankruptcy under applicable law or any other insolvency or debtor’s
relief, an assignment for the benefit of creditors, or a voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Maker.


 


1.10          
Secured Note. The full amount of this Note is secured by the Collateral (as defined in the Security Agreement) identified
and described as security therefor in the Security Agreement, the Pledge Agreement, the Company Patent Security Agreement and the
Company Trademark Security Agreement. In addition, the obligations are also guaranteed by the Company’s wholly-owned subsidiary,
WiSA, LLC (“WiSA”) pursuant to the WiSA Guaranty, and all of WiSA’s obligations under the WiSA Guaranty
are secured by the “Collateral” (as defined in the WiSA Security Agreement) identified and described as security therefor
in the WiSA Security Agreement and the WiSA Trademark Security Agreement.


 


1.11          
Tax Treatment. The Maker and the Holder agree that for U.S. federal income tax purposes, and applicable state, local
and non-U.S. income tax purposes, this Note is not intended to be, and shall not be, treated as indebtedness. Neither the Maker
nor the Holder shall take any contrary position on any tax return, or in any audit, claim, investigation, inquiry or proceeding
in respect of Taxes, unless otherwise required pursuant to a final determination within the meaning of Section 1313 of the Internal
Revenue Code of 1986, as amended (the “Code”), or any analogous provision of applicable state, local or non-U.S.
law.


 


ARTICLE
2 


 


2.1            
Events of Default. An “Event of Default” under this Note shall mean the occurrence of any of the
events defined in the Purchase Agreement, and any of the additional events described below:


 


(a)     
any default in the payment of (i) the Principal Amount hereunder when due; or (ii) liquidated damages in respect of
this Note as and when the same shall become due and payable (whether on the Maturity Date or by acceleration or otherwise);


 


(b)     
the Maker shall fail to observe or perform any other covenant, condition or agreement contained in this Note or any Transaction
Document or WiSA shall fail to observe or perform any covenant, condition or agreement contained in any Transaction Document to
which it is a party;


 






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(c)     
the Maker’s notice to the Holder, including by way of public announcement, at any time, of its inability to comply
(including for any of the reasons described in Section 3.6(a) hereof) or its intention not to comply with proper requests
for conversion of this Note into shares of Common Stock;


 


(d)     
the Maker shall fail to (i) timely deliver the shares of Common Stock as and when required in Section 3.2; or (ii)
make the payment of any fees and/or liquidated damages under this Note, the Purchase Agreement or the other Transaction Documents;


 


(e)     
default shall be made in the performance or observance of any material covenant, condition or agreement contained in the
Purchase Agreement or any other Transaction Document that is not covered by any other provisions of this Section 2.1;


 


(f)       at
any time the Maker shall fail to have a sufficient number of shares of Common Stock authorized, reserved and available for issuance
to satisfy the potential conversion in full (disregarding for this purpose any and all limitations of any kind on such conversion)
of this Note or upon exercise of the Warrant;


 


(g)     
any representation or warranty made by the Maker or any of its Subsidiaries herein or in the Purchase Agreement, this Note,
the Warrant or any other Transaction Document shall prove to have been false or incorrect or breached in a material respect on
the date as of which made;


 


(h)     
unless otherwise approved in writing in advance by the Holder, the Maker shall, or shall announce an intention to pursue
or consummate a Change of Control, or a Change of Control shall be consummated, or the Maker shall negotiate, propose or enter
into any agreement, understanding or arrangement with respect to any Change of Control;


 


(i)       the
Maker or any of its Subsidiaries shall (A) default in any payment of any amount or amounts of principal of or interest (if any)
on any Indebtedness (other than the Indebtedness hereunder), the aggregate principal amount of which Indebtedness is in excess
of $250,000 or (B) default in the observance or performance of any other agreement or condition relating to any such Indebtedness
or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders or beneficiary
or beneficiaries of such Indebtedness to cause with the giving of notice if required, such Indebtedness to become due prior to
its stated maturity;


 


(j)       the Maker or any of its Subsidiaries shall: (i) apply for or consent to the appointment of, or the taking of possession
by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property or assets; (ii) make
a general assignment for the benefit of its creditors; (iii) commence a voluntary case under the United States Bankruptcy Code
(as now or hereafter in effect) or under the comparable laws of any jurisdiction (foreign or domestic); (iv) file a petition seeking
to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors’
rights generally; (v) acquiesce in writing to any petition filed against it in an involuntary case under United States Bankruptcy
Code (as now or hereafter in effect) or under the comparable laws of any jurisdiction (foreign or domestic); (vi) issue a notice
of bankruptcy or winding down of its operations or issue a press release regarding same; or (vii) take any action under the
laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing;


 






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(k)      a
proceeding or case shall be commenced in respect of the Maker or any of its Subsidiaries, without its application or consent,
in any court of competent jurisdiction, seeking: (i) the liquidation, reorganization, moratorium, dissolution, winding up, or
composition or readjustment of its debts; (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it
or of all or any substantial part of its assets in connection with the liquidation or dissolution of the Maker or any of its Subsidiaries;
or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described
in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of forty-five (45) days or any
order for relief shall be entered in an involuntary case under United States Bankruptcy Code (as now or hereafter in effect) or
under the comparable laws of any jurisdiction (foreign or domestic) against the Maker or any of its Subsidiaries or action under
the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Maker
or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect for a period of forty-five (45) days;


 


(l)       
one or more final judgments or orders for the payment of money aggregating in excess of $250,000 (or its equivalent in the
relevant currency of payment) are rendered against one or more of the Company and its Subsidiaries;


 


(m)   
the failure of the Maker to instruct its transfer agent to remove any legends from shares of Common Stock and issue such
unlegended certificates to the Holder within three (3) Trading Days of the Holder’s request so long as the Holder has provided
reasonable assurances to the Maker that such shares of Common Stock can be sold pursuant to Rule 144 or any other applicable exemption;


 


(n)     
the Maker’s shares of Common Stock are no longer publicly traded or cease to be listed on the Trading Market or, after
the six month anniversary of the Issuance Date, any Investor Shares may not be immediately resold under Rule 144 without restriction
on the number of shares to be sold or manner of sale, unless such Investor Shares have been registered for resale under the 1933
Act and may be sold without restriction;


 


(o)     
the Maker consummates a “going private” transaction and as a result the Common Stock is no longer registered
under Sections 12(b) or 12(g) of the 1934 Act;


 


(p)     
there shall be any SEC or judicial stop trade order or trading suspension stop-order or any restriction in place with the
transfer agent for the Common Stock restricting the trading of such Common Stock;


 






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(q)     
the Depository Trust Company places any restrictions on transactions in the Common Stock or the Common Stock is no longer
tradeable through the Depository Trust Company Fast Automated Securities Transfer program;


 


(r)      
the Company’s Market Capitalization is below $2,500,000 for ten (10) consecutive days; or


 


(s)      
the occurrence of a Material Adverse Effect in respect of the Maker, or the Maker and its Subsidiaries taken as a whole.


 


For the avoidance of
doubt, any default pursuant to clause (i) above shall not be subject to any cure periods pursuant to the instrument governing such
Indebtedness or this Note.


 


2.2             
Remedies Upon an Event of Default.


 


(a)     
Upon the occurrence of any Event of Default that has not been remedied within (i) two (2) Business Days for an Event of
Default occurring by the Company’s failure to comply with Section 7.1(c) of the Purchase Agreement or Section 3.2
of this Note, or (ii) ten (10) Business Days for all other Events of Default, provided, however, that there shall
be no cure period for an Event of Default described in Section 2.1(i), 2.1(j) or 2.1(k), the Maker shall be
obligated to pay to the Holder the Mandatory Default Amount, which Mandatory Default Amount shall be earned by the Holder on the
date the Event of Default giving rise thereto occurs and shall be due and payable on the earlier to occur of the Maturity Date,
upon conversion, redemption or prepayment of this Note or the date on which all amounts owing hereunder have been accelerated in
accordance with the terms hereof.


 


(b)     
Upon the occurrence of any Event of Default, the Maker shall, as promptly as possible but in any event within one (1) Business
Day of the occurrence of such Event of Default, notify the Holder of the occurrence of such Event of Default, describing the event
or factual situation giving rise to the Event of Default and specifying the relevant subsection or subsections of Section 2.1
hereof under which such Event of Default has occurred.


 


(c)     
If an Event of Default shall have occurred and shall not have been remedied within (i) two (2) Business Days for an Event
of Default occurring by the Company’s failure to comply with Section 7.1(c) of the Purchase Agreement or Section
3.2 of this Note, or (ii) ten (10) Business Days for all other Events of Default, provided, however, that there
shall be no cure period for an Event of Default described in Section 2.1(i), 2.1(j) or 2.1(k), the Holder
may at any time at its option declare the Mandatory Default Amount due and payable, and thereupon, the same shall be accelerated
and so due and payable, without presentment, demand, protest, or notice, all of which are hereby expressly unconditionally and
irrevocably waived by the Maker; provided, further, however, that (x) upon the occurrence of an Event of Default described
above, the Holder, in its sole and absolute discretion, may: (a) from time-to-time demand that all or a portion of the Outstanding
Principal Amount be converted into shares of Common Stock at the lower of (i) the then-current Conversion Price and (ii) eighty-percent
(80%) of the average of the three (3) lowest daily VWAPs during the twenty (20) Trading Days prior to the delivery by the Holder
of the applicable notice of conversion, which price shall not be lower than the Floor Price (as defined below); or (b) exercise
or otherwise enforce any one or more of the Holder’s rights, powers, privileges, remedies and interests under this Note,
the Purchase Agreement, the other Transaction Documents or applicable law and (y) upon the occurrence of an Event of Default described
in clauses (k) or (l) above, the Mandatory Default Amount shall become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the Maker. No course of delay on the part of the Holder
shall operate as a waiver thereof or otherwise prejudice the rights of the Holder. No remedy conferred hereby shall be exclusive
of any other remedy referred to herein or now or hereafter available at law, in equity, by statute or otherwise.


 






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ARTICLE
3


 


3.1             
Conversion.


 


(a)     
Conversion. At any time following the Conversion Trigger Date, subject to Section 3.3, this Note shall be
convertible (in whole or in part), at the option of the Holder, into such number of fully paid and non-assessable shares of Common
Stock as is determined by dividing (x) that portion of the Outstanding Principal Amount that the Holder elects to convert (the
 “Conversion Amount”) by (y) the Conversion Price then in effect on the date on which the Holder delivers a notice
of conversion, in substantially the form attached hereto as Exhibit B (the “Conversion Notice”), in accordance
with Section 5.1 to the Maker; provided, that the Maker shall have the right, upon written notice to the Holder (a “Cash
Conversion Notice”) within three (3) Business Days of the Maker’s receipt of a Conversion Notice, to, in lieu of
delivering Conversion Shares, satisfy the Conversion Notice by paying in cash one hundred and three percent (103%) of the Conversion
Amount set forth in the applicable Conversion Notice. The Holder shall deliver this Note to the Maker at the address designated
in the Purchase Agreement at such time that this Note is fully converted. With respect to partial conversions of this Note, the
Maker shall keep written records of the amount of this Note converted as of the date of such conversion (each, a “Conversion
Date”).


 


(b)     
Conversion Price. The “Conversion Price” means the lesser of: (i) ninety percent (90%) of the
average of the five (5) lowest daily VWAPs during the twenty (20) Trading Days prior to the delivery of the applicable Conversion
Notice; and (ii) $0.32 (the “Base Conversion Price”), provided, that the Conversion Price shall not be lower
than $0.10 (the “Floor Price”), provided, that, following any transaction or event that would, but for the preceding
proviso, lower the Conversion Price to below the Floor Price, upon the delivery of a Conversion Notice the Holder may, in its sole
discretion, either (i) receive the number of shares of Common Stock equal to the relevant Conversion Amount divided by the Floor
Price or (ii) require the Maker to redeem the relevant Conversion Amount at 103% of the applicable Conversion Amount in immediately
available funds.


 






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(c)     
Conversion Limitation. During the Limitation Period, this Note shall only be convertible by the Holder to the extent
that the aggregate amount of Outstanding Principal Amount voluntary converted pursuant to Section 3.1(a) does not exceed
$102,000 during any calendar month; provided, (i) during any period where the Maker’s Market Capitalization is greater than
$12 million or less than $4 million or (ii) upon the occurrence of any Event of Default that has not been remedied, the limitations
set forth in this Section 3.1(c) shall not apply and there shall be no limitation on the Holder’s ability to convert
this Note pursuant to Section 3.1(a).


 


(d)     
Stockholder Approval. The Company shall not be required to issue any Conversion Shares if such issuance would cause
the Company to be required to obtain the Stockholder Approval either pursuant to the rules and regulations of the Trading Market
or otherwise until such Stockholder Approval has been obtained.


 


3.2             
Delivery of Conversion Shares. As soon as practicable after any conversion in accordance with this Note and in any
event within three (3) Trading Days thereafter (such date, the “Share Delivery Date”), the Maker shall, at its
expense, cause to be issued in the name of and delivered to the Holder, or as the Holder may direct, a certificate or certificates
evidencing the number of fully paid and non-assessable shares of Common Stock to which the Holder shall be entitled on such conversion
(the “Conversion Shares”), in such denominations as may be requested by the Holder, which certificate or certificates
shall be free of restrictive and trading legends (except for any such legends as may be required under the 1933 Act). In lieu of
delivering physical certificates for the shares of Common Stock issuable upon any conversion of this Note, provided the Company’s
transfer agent is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer program
or a similar program, upon request of the Holder, the Company shall cause its transfer agent to electronically transmit such shares
of Common Stock issuable upon conversion of this Note to the Holder (or its designee), by crediting the account of the Holder’s
(or such designee’s) broker with DTC through its Deposit Withdrawal Agent Commission system (provided that the same time
periods herein as for stock certificates shall apply) as instructed by the Holder (or its designee).


 


3.3             
Ownership Cap. Notwithstanding anything to the contrary contained herein, the Holder shall not be entitled to receive
shares representing Equity Interests upon conversion of this Note to the extent (but only to the extent) that such exercise or
receipt would cause the Holder Group (as defined below) to become, directly or indirectly, a “beneficial owner” (within
the meaning of Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder) of a number of Equity Interests
of a class that is registered under the 1934 Act which exceeds the Maximum Percentage (as defined below) of the Equity Interests
of such class that are outstanding at such time. Any purported delivery of Equity Interests in connection with the conversion of
this Note prior to the termination of this restriction in accordance herewith shall be void and have no effect to the extent (but
only to the extent) that such delivery would result in the Holder Group becoming the beneficial owner of more than the Maximum
Percentage of the Equity Interests of a class that is registered under the 1934 Act that is outstanding at such time. If any delivery
of Equity Interests owed to the Holder following conversion of this Note is not made, in whole or in part, as a result of this
limitation, the Company’s obligation to make such delivery shall not be extinguished and the Company shall deliver such Equity
Interests as promptly as practicable after the Holder gives notice to the Company that such delivery would not result in such limitation
being triggered or upon termination of the restriction in accordance with the terms hereof. To the extent limitations contained
in this Section 3.3 apply, the determination of whether this Note is convertible and of which portion of this Note is convertible
shall be the sole responsibility and in the sole determination of the Holder, and the submission of a notice of conversion shall
be deemed to constitute the Holder’s determination that the issuance of the full number of Conversion Shares requested in
the notice of conversion is permitted hereunder, and the Company shall not have any obligation to verify or confirm the accuracy
of such determination. For purposes of this Section 3.3, (i) the term “Maximum Percentage” shall
mean 4.99%; provided, that if at any time after the date hereof the Holder Group beneficially owns in excess of 4.99% of any class
of Equity Interests in the Company that is registered under the 1934 Act, then the Maximum Percentage shall automatically increase
to 9.99% so long as the Holder Group owns in excess of 4.99% of such class of Equity Interests (and shall, for the avoidance of
doubt, automatically decrease to 4.99% upon the Holder Group ceasing to own in excess of 4.99% of such class of Equity Interests);
and (ii) the term “Holder Group” shall mean the Holder plus any other Person with which the Holder is considered
to be part of a group under Section 13 of the 1934 Act or with which the Holder otherwise files reports under Sections 13
and/or 16 of the 1934 Act. In determining the number of Equity Interests of a particular class outstanding at any point in time,
the Holder may rely on the number of outstanding Equity Interests of such class as reflected in (x) the Company’s most recent
Annual Report on Form 10-K or Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission, as the case may
be, (y) a more recent public announcement by the Company or (z) a more recent notice by the Company or its transfer agent to the
Holder setting forth the number of Equity Interests of such class then outstanding. For any reason at any time, upon written or
oral request of the Holder, the Company shall, within one (1) Business Day of such request, confirm orally and in writing to the
Holder the number of Equity Interests of any class then outstanding. Anything herein to the contrary, any increase in the Beneficial
Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of
this Section 3.3 shall be construed, corrected and implemented in a manner so as to effectuate the intended beneficial ownership
limitation herein contained.


 






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3.4             
Adjustment of Base Conversion Price.


 


(a)     
Until the Note has been paid in full or converted in full, the Base Conversion Price shall be subject to adjustment from
time to time as follows (but shall not be increased, other than pursuant to Section 3.4(a)(i) hereof):


 


(i)                
Adjustments for Stock Splits and Combinations. If the Maker shall at any time or from time to time after the Closing
Date (but whether before or after the Issuance Date) effect a split of the outstanding Common Stock, the applicable Base Conversion
Price in effect immediately prior to the stock split shall be proportionately decreased. If the Maker shall at any time or from
time to time after the Closing Date (but whether before or after the Issuance Date), combine the outstanding shares of Common Stock,
the applicable Base Conversion Price in effect immediately prior to the combination shall be proportionately increased. Any adjustments
under this Section 3.4(a)(i) shall be effective at the close of business on the date the stock split or combination occurs.


 


(ii)             
Adjustments for Certain Dividends and Distributions. If the Maker shall at any time or from time to time after the
Closing Date (but whether before or after the Issuance Date) make or issue or set a record date for the determination of holders
of Common Stock entitled to receive a dividend or other distribution payable in shares of Common Stock, then, and in each event,
the applicable Base Conversion Price in effect immediately prior to such event shall be decreased as of the time of such issuance
or, in the event such record date shall have been fixed, as of the close of business on such record date, by multiplying the applicable
Base Conversion Price then in effect by a fraction:


 


(1)              
the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date; and


 


(2)              
the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to
the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment
of such dividend or distribution.


 






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(iii)           
Adjustment for Other Dividends and Distributions. If the Maker shall at any time or from time to time after the Closing
Date (but whether before or after the Issuance Date) make or issue or set a record date for the determination of holders of Common
Stock entitled to receive a dividend or other distribution payable in other than shares of Common Stock, then, and in each event,
an appropriate revision to the applicable Base Conversion Price shall be made and provision shall be made (by adjustments of the
Base Conversion Price or otherwise) so that the Holder of this Note shall receive upon conversions thereof, in addition to the
number of shares of Common Stock receivable thereon, the number of securities of the Maker or other issuer (as applicable) or other
property that it would have received had this Note been converted into Common Stock in full (without regard to any conversion limitations
herein) on the date of such event and had thereafter, during the period from the date of such event to and including the Conversion
Date, retained such securities (together with any distributions payable thereon during such period) or assets, giving application
to all adjustments called for during such period under this Section 3.4(a)(iii) with respect to the rights of the holders
of this Note; provided, however, that if such record date shall have been fixed and such dividend is not fully paid or if
such distribution is not fully made on the date fixed therefor, the Base Conversion Price shall be adjusted pursuant to this paragraph
as of the time of actual payment of such dividends or distributions.


 


(iv)            
Adjustments for Reclassification, Exchange or Substitution. If the Common Stock at any time or from time to time
after the Closing Date (but whether before or after the Issuance Date) shall be changed to the same or different number of shares
or other securities of any class or classes of stock or other property, whether by reclassification, exchange, substitution or
otherwise (other than by way of a stock split or combination of shares or stock dividends provided for in Sections 3.4(a)(i),
(ii) and (iii) hereof, or a reorganization, merger, consolidation, or sale of assets provided for in Section 3.4(a)(v)
hereof), then, and in each event, an appropriate revision to the Base Conversion Price shall be made and provisions shall be made
(by adjustments of the Base Conversion Price or otherwise) so that the Holder shall have the right thereafter to convert this Note
into the kind and amount of shares of stock or other securities or other property receivable upon reclassification, exchange, substitution
or other change, by holders of the number of shares of Common Stock into which such Note might have been converted immediately
prior to such reclassification, exchange, substitution or other change, all subject to further adjustment as provided herein.


 






    	 	10	 



     


    

 


(v)              
Adjustments for Issuance of Additional Shares of Common Stock. In the event the Maker shall at any time or from time
to time after the Closing Date (but whether before or after the Issuance Date) issue or sell any additional shares of Common Stock
(“Additional Shares of Common Stock”), other than (A) as provided in this Note (including the foregoing subsections
(i) through (iv) of this Section 3.4(a)), pursuant to any Equity Plan (including pursuant to Common Stock Equivalents granted
or issued under any Equity Plan), (B) pursuant to Common Stock Equivalents granted or issued prior to the Closing Date, or (C)
Exempted Securities, in any case, at an effective price per share that is less than the Base Conversion Price then
in effect or without consideration, then the Base Conversion Price upon each such issuance shall be reduced to a price equal to
the consideration per share paid for such Additional Shares of Common Stock. For purposes of clarification, the amount of consideration
received for such Additional Shares of Common Stock shall not include the value of any additional securities or other rights received
in connection with such issuance of Additional Shares of Common Stock (i.e. warrants, rights of first refusal or other similar
rights).


 


(vi)            
Issuance, Amendment or Adjustment of Common Stock Equivalents. Except for Exempted Securities, if (x) the Maker,
at any time after the Closing Date (but whether before or after the Issuance Date), shall issue any securities convertible into
or exercisable or exchangeable for, directly or indirectly, Common Stock (“Convertible Securities”), or any
rights or warrants or options to purchase any such Common Stock or Convertible Securities, other than Common Stock Equivalents
granted or issued under any Equity Plan (collectively with the Convertible Securities, the “Common Stock Equivalents”)
and the price per share for which shares of Common Stock may be issuable pursuant to any such Common Stock Equivalent shall be
less than the applicable Base Conversion Price then in effect, or (y) the price per share for which shares of Common
Stock may be issuable under any Common Stock Equivalents is amended or adjusted, pursuant to the terms of such Common Stock Equivalents
or otherwise, and such price as so amended or adjusted shall be less than the applicable Base Conversion Price in effect at the
time of such amendment or adjustment, then, in each such case (x) or (y), the applicable Base Conversion Price upon each such issuance
or amendment or adjustment shall be adjusted as provided in subsection (vi) of this Section 3.4(a) as if the maximum number
of shares of Common Stock issuable upon conversion, exercise or exchange of such Common Stock Equivalents had been issued on the
date of such issuance or amendment or adjustment.


 


(vii)         
Consideration for Stock. In case any shares of Common Stock or any Common Stock Equivalents shall be issued or sold:


 


(1)              
in connection with any merger or consolidation in which the Maker is the surviving corporation (other than any consolidation
or merger in which the previously outstanding shares of Common Stock of the Maker shall be changed to or exchanged for the stock
or other securities of another corporation), the amount of consideration therefor shall be, deemed to be the fair value, as determined
reasonably and in good faith by the Board of Directors of the Maker and approved by the Holder, of such portion of the assets and
business of the nonsurviving corporation as such Board of Directors may determine to be attributable to such shares of Common Stock,
Convertible Securities, rights or warrants or options, as the case may be; or


 






    	 	11	 



     


    

 


(2)              
in the event of any consolidation or merger of the Maker in which the Maker is not the surviving corporation or in which
the previously outstanding shares of Common Stock of the Maker shall be changed into or exchanged for the stock or other securities
of another corporation or other property, or in the event of any sale of all or substantially all of the assets of the Maker for
stock or other securities or other property of any corporation, the Maker shall be deemed to have issued shares of its Common Stock,
at a price per share equal to the valuation of the Maker’s Common Stock based on the actual exchange ratio on which the transaction
was predicated, as applicable, and the fair market value on the date of such transaction of all such stock or securities or other
property of the other corporation. If any such calculation results in adjustment of the applicable Base Conversion Price, or the
number of shares of Common Stock issuable upon conversion of the Note, the determination of the applicable Base Conversion Price
or the number of shares of Common Stock issuable upon conversion of the Note immediately prior to such merger, consolidation or
sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock issuable upon conversion of
the Note. In the event Common Stock is issued with other shares or securities or other assets of the Maker for consideration which
covers both, the consideration computed as provided in this Section 3.4(a)(vii) shall be allocated among such securities
and assets as determined in good faith by the Board of Directors of the Maker, and approved by the Holder.


 


(viii)       
Record Date. In case the Maker shall take record of the holders of its Common Stock for the purpose of entitling
them to subscribe for or purchase Common Stock or Convertible Securities, then the date of the issue or sale of the shares of Common
Stock shall be deemed to be such record date.


 


(b)     
No Impairment. The Maker shall not, by amendment of its Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek
to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Maker, but will at all
times in good faith assist in the carrying out of all the provisions of this Section 3.4 and in the taking of all such action
as may be necessary or appropriate in order to protect the conversion rights of the Holder against impairment. In the event the
Holder shall elect to convert this Note as provided herein, the Maker cannot refuse conversion based on any claim that the Holder
or anyone associated or affiliated with the Holder has been engaged in any violation of law, violation of an agreement to which
the Holder is a party or for any reason whatsoever, unless, an injunction from a court, or notice, restraining and or adjoining
conversion of this Note shall have issued and the Maker posts a surety bond for the benefit of the Holder in an amount equal to
one hundred fifty percent (150%) of the Principal Amount of the Note the Holder has elected to convert, which bond shall remain
in effect until the completion of arbitration/litigation of the dispute and the proceeds of which shall be payable to the Holder
(as liquidated damages) in the event it obtains judgment.


 






    	 	12	 



     


    

 


(c)     
Certificates as to Adjustments. Upon occurrence of each adjustment or readjustment of the Base Conversion Price or
number of shares of Common Stock issuable upon conversion of this Note pursuant to this Section 3.4, the Maker at its expense
shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the Holder a certificate
setting forth such adjustment and readjustment, showing in detail the facts upon which such adjustment or readjustment is based.
The Maker shall, upon written request of the Holder, at any time, furnish or cause to be furnished to the Holder a like certificate
setting forth such adjustments and readjustments, the applicable Base Conversion Price in effect at the time, and the number of
shares of Common Stock and the amount, if any, of other securities or property which at the time would be received upon the conversion
of this Note. Notwithstanding the foregoing, the Maker shall not be obligated to deliver a certificate unless such certificate
would reflect an increase or decrease of at least one percent (1%) of such adjusted amount.


 


(d)     
Issue Taxes. The Maker shall pay any and all issue and other taxes, excluding federal, state or local income taxes,
that may be payable in respect of any issue or delivery of shares of Common Stock on conversion of this Note pursuant thereto;
provided, however, that the Maker shall not be obligated to pay any transfer taxes resulting from any transfer requested
by the Holder in connection with any such conversion.


 


(e)     
Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of this Note. In lieu of
any fractional shares to which the Holder would otherwise be entitled, the Maker shall pay cash equal such fractional shares multiplied
by the Conversion Price then in effect.


 


(f)      
Reservation of Common Stock. The Maker shall at all while this Note shall be outstanding, reserve and keep available
out of its authorized but unissued Common Stock, such number of shares of Common Stock as shall from time to time be sufficient
to effect the conversion of this Note (disregarding for this purpose any and all limitations of any kind on such conversion). The
Maker shall, from time to time, increase the authorized number of shares of Common Stock or take other effective action if at any
time the unissued number of authorized shares shall not be sufficient to satisfy the Maker’s obligations under this Section 3.4(g).


 


(g)     
Regulatory Compliance. If any shares of Common Stock to be reserved for the purpose of conversion of this Note require
registration or listing with or approval of any governmental authority, stock exchange or other regulatory body under any federal
or state law or regulation or otherwise before such shares may be validly issued or delivered upon conversion, the Maker shall,
at its sole cost and expense, in good faith and as expeditiously as possible, secure such registration, listing or approval, as
the case may be.


 


(h)     
Effect of Events Prior to the Issuance Date. If the Issuance Date of this Note is after the Closing Date, then, if
the Base Conversion Price or any other right of the Holder of this Note would have been adjusted or modified by operation of any
provision of this Note had this Note been issued on the Closing Date, such adjustment or modification shall be deemed to apply
to this Note as of the Issuance Date as if this Note had been issued on the Closing Date.


 






    	 	13	 



     


    

 


3.5             
Prepayment Following a Change of Control.


 


(a)     
Mechanics of Prepayment at Option of Holder in Connection with a Change of Control. No sooner than fifteen (15) days
prior to entry into an agreement for a Change of Control nor later than ten (10) days prior to the consummation of a Change of
Control, but not prior to the public announcement of such Change of Control, the Maker shall deliver written notice (“Notice
of Change of Control”) to the Holder. At any time after receipt of a Notice of Change of Control (or, in the event a
Notice of Change of Control is not delivered at least ten (10) days prior to a Change of Control, at any time within ten (10) days
prior to a Change of Control), the Holder may require the Maker to prepay, effective immediately prior to the consummation of such
Change of Control, an amount equal to 105% of the Outstanding Principal Amount(the “COC Repayment Price”), by
delivering written notice thereof (“Notice of Prepayment at Option of Holder Upon Change of Control”) to the
Maker.


 


(b)     
Payment of COC Repayment Price. Upon the Maker’s receipt of a Notice(s) of Prepayment at Option of Holder Upon
Change of Control from the Holder, the Maker shall deliver the COC Repayment Price to the Holder immediately prior to the consummation
of the Change of Control; provided that the Holder’s original Note shall have been so delivered to the Maker.


 


3.6             
Inability to Fully Convert.


 


(a)     
Holder’s Option if Maker Cannot Fully Convert. If, upon the Maker’s receipt of a Conversion Notice or
as otherwise required under this Note, including with respect to repayment of principal in shares of Common Stock as permitted
under this Note, the Maker cannot issue shares of Common Stock for any reason, including, without limitation, because the Maker
(x) does not have a sufficient number of shares of Common Stock authorized and available, (y) is unable to issue the Holder freely
tradable shares of Common Stock or (z) is otherwise prohibited by applicable law or by the rules or regulations of any stock exchange,
interdealer quotation system or other self-regulatory organization with jurisdiction over the Maker or any of its securities from
issuing all of the Common Stock which is to be issued to the Holder pursuant to this Note, then the Maker shall issue as many shares
of Common Stock as it is able to issue and, with respect to the unconverted portion of this Note or with respect to any shares
of Common Stock not timely issued in accordance with this Note, the Holder, solely at Holder’s option, can elect to:


 


(i)                
require the Maker to prepay that portion of this Note for which the Maker is unable to issue Common Stock or for which shares
of Common Stock were not timely issued (the “Mandatory Prepayment”) at a price equal to the number of shares
of Common Stock that the Maker is unable to issue multiplied by the VWAP on the date of the Conversion Notice (the “Mandatory
Prepayment Price”);


 


(ii)             
void its Conversion Notice and retain or have returned, as the case may be, this Note that was to be converted pursuant
to the Conversion Notice (provided that the Holder’s voiding its Conversion Notice shall not affect the Maker’s obligations
to make any payments which have accrued prior to the date of such notice); or


 






    	 	14	 



     


    

 


(iii)           
defer issuance of the applicable Conversion Shares until such time as the Maker can legally issue such shares; provided,
that the Principal Amount underlying such Conversion Shares shall remain outstanding until the delivery of such Conversion Shares;
provided, further, that if the Holder elects to defer the issuance of the Conversion Shares, it may exercise its rights under either
clause (i) or (ii) above at any time prior to the issuance of the Conversion Shares upon two (2) Business Days’ notice to
the Maker.


 


(b)     
Mechanics of Fulfilling Holder’s Election. The Maker shall immediately send to the Holder, upon receipt of
a Conversion Notice from the Holder, which cannot be fully satisfied as described in Section 3.6(a) above, a notice of the
Maker’s inability to fully satisfy the Conversion Notice (the “Inability to Fully Convert Notice”). Such
Inability to Fully Convert Notice shall indicate (i) the reason why the Maker is unable to fully satisfy the Holder’s Conversion
Notice; and (ii) the amount of this Note which cannot be converted. The Holder shall notify the Maker of its election pursuant
to Section 3.6(a) above by delivering written notice to the Maker (“Notice in Response to Inability to Convert”).


 


(c)     
Payment of Mandatory Prepayment Price. If the Holder shall elect to have its Note prepaid pursuant to Section
3.6(a)(i) above, the Maker shall pay the Mandatory Prepayment Price to the Holder within five (5) Business Days of the Maker’s
receipt of the Holder’s Notice in Response to Inability to Convert; provided that prior to the Maker’s receipt of the
Holder’s Notice in Response to Inability to Convert the Maker has not delivered a notice to the Holder stating, to the satisfaction
of the Holder, that the event or condition resulting in the Mandatory Prepayment has been cured and all Conversion Shares issuable
to the Holder can and will be delivered to the Holder in accordance with the terms of this Note. If the Maker shall fail to pay
the applicable Mandatory Prepayment Price to the Holder on the date that is one (1) Business Day following the Maker’s receipt
of the Holder’s Notice in Response to Inability to Convert, in addition to any remedy the Holder may have under this Note
and the Purchase Agreement, such unpaid amount shall bear interest at the rate of two percent (2%) per month (prorated for partial
months) until paid in full. Until the full Mandatory Prepayment Price is paid in full to the Holder, the Holder may (i) void the
Mandatory Prepayment with respect to that portion of the Note for which the full Mandatory Prepayment Price has not been paid and
(ii) receive back such Note.


 


(d)     
No Rights as Stockholder. Nothing contained in this Note shall be construed as conferring upon the Holder, prior
to the conversion of this Note, the right to vote or to receive dividends or to consent or to receive notice as a stockholder in
respect of any meeting of stockholders for the election of directors of the Maker or of any other matter, or any other rights as
a stockholder of the Maker.


 






    	 	15	 



     


    

 


ARTICLE
4


 


4.1             
Covenants. For so long as any Note is outstanding, without the prior written consent of the Holder:


 


(a)     
Compliance with Transaction Documents. The Maker shall, and shall cause its Subsidiaries to, comply with its obligations
under this Note and the other Transaction Documents.


 


(b)     
Payment of Taxes, Etc. The Maker shall, and shall cause each of its Subsidiaries to, promptly pay and discharge,
or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed
upon the income, profits, property or business of the Maker and the Subsidiaries, except for such failures to pay that, individually
or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect; provided, however , that
any such tax, assessment, charge or levy need not be paid if the validity thereof shall currently be contested in good faith by
appropriate proceedings and if the Maker or such Subsidiaries shall have set aside on its books adequate reserves with respect
thereto, and provided, further, that the Maker and such Subsidiaries will pay all such taxes, assessments, charges or levies forthwith
upon the commencement of proceedings to foreclose any lien which may have attached as security therefor.


 


(c)     
Corporate Existence. The Maker shall, and shall cause each of its Subsidiaries to, maintain in full force and effect
its corporate existence, rights and franchises and all licenses and other rights to use property owned or possessed by it and reasonably
deemed to be necessary to the conduct of its business.


 


(d)     
Investment Company Act. The Maker shall conduct its businesses in a manner so that it will not become subject to,
or required to be registered under, the Investment Company Act of 1940, as amended.


 


(e)     
Sale of Collateral; Liens. From the date hereof until the full release of the security interest in the Collateral
and the “Collateral” (as such term is defined in the WiSA Security Agreement) (the “WiSA Collateral”),
(i) the Maker shall not, and shall not permit WiSA to, sell, lease, transfer or otherwise dispose of any of the Collateral or the
WiSA Collateral, or attempt or contract to do so or permit WiSA to attempt or contract to do so, other than sales of inventory
in the ordinary course of business consistent with past practices; and (ii) the Maker shall not, and shall not permit WiSA to,
directly or indirectly, create, permit or suffer to exist, and shall defend the Collateral and cause WiSA to defend the WiSA Collateral
against and take such other action, and cause WiSA to take such other action, as is necessary to remove, any lien, security interest
or other encumbrance on the Collateral and the WiSA Collateral (except for the pledge, assignment and security interest created
under the Security Agreement, the WiSA Security Agreement, any Permitted Liens (as defined in the Security Agreement) or any “Permitted
Lien” (as defined in the WiSA Security Agreement)).


 






    	 	16	 



     


    

 


(f)      
Prohibited Transactions. The Company hereby covenants and agrees not to enter into any Prohibited Transactions until
thirty (30) days after such time as this Note has been converted into Conversion Shares or repaid in full.


 


(g)     
Repayment of This Note. If the Company issues any debt, including any subordinated debt or convertible debt (other
than this Note), or any preferred stock, unless otherwise agreed in writing by the Holder, the Company will immediately utilize
the proceeds of such issuance to repay this Note.


 


4.2             
Set-Off. This Note shall be subject to the set-off provisions set forth in the Purchase Agreement.


 


ARTICLE
5


 


5.1             
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder
shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via email at the email address specified in this Section prior to 5:00 p.m. (New York time) on a Business
Day, (b) the next Business Day after the date of transmission, if such notice or communication is delivered via email at the email
address specified in this Section on a day that is not a Business Day or later than 5:00 p.m. (New York time) on any date and earlier
than 11:59 p.m. (New York time) on such date, (c) the Business Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given. The addresses for
notice shall be as set forth in the Purchase Agreement.


 


5.2             
Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of New
York, without reference to principles of conflict of laws or choice of laws. This Note shall not be interpreted or construed with
any presumption against the party causing this Note to be drafted.


 


5.3             
Headings. Article and section headings in this Note are included herein for purposes of convenience of reference
only and shall not constitute a part of this Note for any other purpose.


 


5.4             
Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Note
shall be cumulative and in addition to all other remedies available under this Note, at law or in equity (including, without limitation,
a decree of specific performance and/or other injunctive relief), no remedy contained herein shall be deemed a waiver of compliance
with the provisions giving rise to such remedy and nothing herein shall limit the Holder’s right to pursue actual damages
for any failure by the Maker to comply with the terms of this Note. Amounts set forth or provided for herein with respect to payments,
conversion and the like (and the computation thereof) shall be the amounts to be received by the holder thereof and shall not,
except as expressly provided herein, be subject to any other obligation of the Maker (or the performance thereof). The Maker acknowledges
that a breach by it of its obligations hereunder will cause irreparable and material harm to the Holder and that the remedy at
law for any such breach would be inadequate. Therefore, the Maker agrees that, in the event of any such breach or threatened breach,
the Holder shall be entitled, in addition to all other available rights and remedies, at law or in equity, to equitable relief,
including but not limited to an injunction restraining any such breach or threatened breach, without the necessity of showing economic
loss and without any bond or other security being required.


 






    	 	17	 



     


    

 


5.5             
Enforcement Expenses. The Maker agrees to pay all costs and expenses of enforcement of this Note, including, without
limitation, reasonable attorneys’ fees and expenses.


 


5.6             
Binding Effect. The obligations of the Maker and the Holder set forth herein shall be binding upon the successors
and assigns of each such party, whether or not such successors or assigns are permitted by the terms herein.


 


5.7             
Amendments; Waivers. No provision of this Note may be waived or amended except in a written instrument signed by
the Company and the Holder. No waiver of any default with respect to any provision, condition or requirement of this Note shall
be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the
exercise of any such right.


 


5.8             
Compliance with Securities Laws. The Holder of this Note acknowledges that this Note is being acquired solely for
the Holder’s own account and not as a nominee for any other party, and for investment, and that the Holder shall not offer,
sell or otherwise dispose of this Note in violation of securities laws. This Note and any Note issued in substitution or replacement
therefor shall be stamped or imprinted with a legend in substantially the following form:


 


“THIS NOTE HAS NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE
TO THE COMPANY.”


 






    	 	18	 



     


    

 


5.9             
Jurisdiction; Venue. Any action, proceeding or claim arising out of, or relating in any way to this Agreement shall
be brought and enforced in the New York Supreme Court, County of New York, or in the United States District Court for the Southern
District of New York. The Company and the Holder irrevocably submit to the jurisdiction of such courts, which jurisdiction shall
be exclusive, and hereby waive any objection to such exclusive jurisdiction or that such courts represent an inconvenient forum.
The prevailing party in any such action shall be entitled to recover its reasonable and documented attorneys’ fees and out-of-pocket
expenses relating to such action or proceeding.


 


5.10         
Parties in Interest. This Note shall be binding upon, inure to the benefit of and be enforceable by the Maker, the
Holder and their respective successors and permitted assigns.


 


5.11         
Failure or Indulgence Not Waiver. No failure or delay on the part of the Holder in the exercise of any power, right
or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right, power or privilege.


 


5.12         
Maker Waivers. Except as otherwise specifically provided herein, the Maker and all others that may become liable
for all or any part of the obligations evidenced by this Note, hereby waive presentment, demand, notice of nonpayment, protest
and all other demands’ and notices in connection with the delivery, acceptance, performance and enforcement of this Note,
and do hereby consent to any number of renewals of extensions of the time or payment hereof and agree that any such renewals or
extensions may be made without notice to any such persons and without affecting their liability herein and do further consent to
the release of any person liable hereon, all without affecting the liability of the other persons, firms or Maker liable for the
payment of this Note, AND DO HEREBY WAIVE TRIAL BY JURY.


 


(a)     
No delay or omission on the part of the Holder in exercising its rights under this Note, or course of conduct relating hereto,
shall operate as a waiver of such rights or any other right of the Holder, nor shall any waiver by the Holder of any such right
or rights on any one occasion be deemed a waiver of the same right or rights on any future occasion.


 


(b)     
THE MAKER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A COMMERCIAL TRANSACTION, AND TO THE EXTENT
ALLOWED BY APPLICABLE LAW, HEREBY WAIVES ITS RIGHT TO NOTICE AND HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE HOLDER
OR ITS SUCCESSORS OR ASSIGNS MAY DESIRE TO USE.


 


5.13         
Definitions. Capitalized terms used herein and not defined shall have the meanings set forth in the Purchase Agreement.
For the purposes hereof, the following terms shall have the following meanings:


 


(a)     
“Conversion Trigger Date” means the earlier of the day that (i) is sixty (60) days from the execution
of the Purchase Agreement or (ii) the Registration Statement is declared effective by the SEC; provided, that if the Maker enters
into an underwriting agreement in connection with a Qualifying Offering within forty-five (45) days of the Issuance Date, the Conversion
Trigger Date shall be no earlier than the sixty-first (61st) day after such agreement’s execution.


 






    	 	19	 



     


    

 


(b)     
“Indebtedness” means: (a) all obligations for borrowed money; (b) all obligations evidenced by bonds,
debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers
acceptances, current swap agreements, interest rate hedging agreements, interest rate swaps, or other financial products; (c) all
capital lease obligations that exceed $150,000 in the aggregate in any fiscal year; (d) all obligations or liabilities secured
by a lien or encumbrance on any asset of the Maker, irrespective of whether such obligation or liability is assumed; (e) all obligations
for the deferred purchase price of assets, together with trade debt and other accounts payable that exceed $150,000 in the aggregate
in any fiscal year; (f) all synthetic leases; (g) any obligation guaranteeing or intended to guarantee (whether directly or indirectly
guaranteed, endorsed, co-made, discounted or sold with recourse) any of the foregoing obligations of any other person; (h) trade
debt; and (i) endorsements for collection or deposit.


 


(c)     
“Limitation Period” means the period commencing on the Conversion Trigger Date and ending on the nine-month
anniversary of the Conversion Trigger Date.


 


(d)     
“Mandatory Default Amount” means an amount equal to one hundred twenty percent (120%) of the Outstanding
Principal Amount of this Note on the date on which the first Event of Default has occurred hereunder.


 


(e)     
“Market Capitalization” means, as of any date of determination, the product of (a) the number of issued
and outstanding shares of Common Stock as of such date (exclusive of any shares of common stock issuable upon the exercise of options
or warrants or conversion of any convertible securities), multiplied by (b) the closing price of the Common Stock on the Trading
Market on the date of determination.


 


(f)      
“Outstanding Principal Amount” means, at the time of determination, the Principal Amount outstanding
after giving effect to any conversions or prepayments pursuant to the terms hereof.


 


(g)     
“Trading Day” means a day on which the Common Stock is traded on a Trading Market.


 


(h)     
“VWAP” means, as of any date, the price determined by the first of the following clauses that applies:
(a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of one share of Common
Stock on the applicable Trading Price for such date (or the nearest preceding date) on such Trading Market as reported by Bloomberg
Financial L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York city time)); (b) if the Common
Stock is not then listed on a Trading Market and if the Common Stock is traded in the over-the-counter market, as reported by the
OTC Bulletin Board, the volume weighted average price of one share of Common Stock for such date (or the nearest preceding date)
on the OTC Bulletin Board, as reported by Bloomberg Financial L.P.; (c) if the Common Stock is not then listed or quoted on the
OTC Bulletin Board and if prices for the Common Stock is then reported in the “Pink Sheets” published by the Pink OTC
Markets Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price of
one share of Common Stock so reported, as reported by Bloomberg Financial L.P.; or (d) in all other cases, the fair market value
of one share of Common Stock as determined by an independent appraiser selected in good faith by the Holder and reasonably acceptable
to the Company.


 


[Signature Pages Follow]


 









    	 	20	 



     


    

 


IN WITNESS WHEREOF, the Maker has
caused this Note to be duly executed by its duly authorized officer as of the date first above indicated.


 


	 	SUMMIT
WIRELESS

                                                                                            TECHNOLOGIES, INC.

	 	 	 
	 	By:	 
	 	Name:	Brett Moyer
	 	Title:	Chairman & Chief Executive Officer




 



    	 



     


    

 





EXHIBIT A 


 


WIRE INSTRUCTIONS


 


Name of Bank: 


Routing #:


For credit to:


Account #:








 






    	 



     


    

 


EXHIBIT B


 


FORM OF CONVERSION NOTICE


 


(To be Executed by the Registered Holder
in order to Convert the Note)


 


 


The undersigned hereby irrevocably
elects to convert $ ________________ of the principal amount of the above Note No. ___ into shares of Common Stock of Summit Wireless
Technologies, Inc. (the “Maker”) according to the conditions hereof, as of the date written below.


 


Date of Conversion:


 


Conversion Price:


 


Number of shares of Common Stock beneficially owned
or deemed beneficially owned by the Holder on the Conversion Date:


 


	 	[HOLDER]
	 	 	 
	 	By:	 
	 	Name:	
	 	Title:	
	 	 	 
	 	Address: