THIS AMENDED AND RESTATED WARRANT
AGREEMENT, DATED AS OF DECEMBER 13, 2013, HEREBY AMENDS AND RESTATES IN ITS ENTIRETY WARRANT NO. W-1 ISSUED BY DVINEWAVE
INC. TO MDB Capital Group, LLC ON MAY 16, 2013.
NEITHER THE ISSUANCE AND SALE OF THE
SECURITIES REPRESENTED BY THIS AGREEMENT NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE
TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144
OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
DVINEWAVE INC.
Amended
and Restated Warrant To Purchase Common Stock
Warrant No.: ARW-1
Date of Original Issuance: May 16, 2013
(“Issuance Date”)
DvineWave Inc., a Delaware
corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, MDB Capital Group, LLC, the registered holder hereof or its permitted assigns (the “Holder”),
is entitled, subject to the terms set forth below, to purchase from the Company, at the then applicable Per Share Exercise Price
(as defined below), upon exercise of this Amended and Restated Warrant (including any warrants to purchase Common Stock issued
in exchange, transfer or replacement hereof, the “Warrant”), at any time or times on or after the Applicable
First Exercise Date (as defined below), but not after 11:59 p.m., New York time, on the Expiration Date (as defined below), 1,110,131
(subject to the adjustment as provided herein) fully paid and non-assessable shares of Common Stock (the “Warrant
Shares”). As set forth herein, the exercise price may be paid in cash or through a Cashless Exercise provision. Except
as otherwise defined herein, capitalized terms in this Warrant shall have the meanings set forth in Section 16. “Applicable
First Exercise Date” shall mean six (6) months after the date of the Initial Public Offering (the “IPO Date”);
except that this Warrant may be exercised before the IPO Date contingent upon the closing of any Fundamental Transaction and the
holder may exercise its put right in the event of an Illiquid Exit Transaction.
The Holder acknowledges
that this Warrant is issued pursuant to that certain engagement agreement dated January 23, 2013 between the Company and Holder
for certain strategic consulting services (the “Engagement Agreement”), specifically to satisfy the Company’s
obligation under Section 2(a) thereof to issue a warrant. In accordance with such Engagement Agreement, the Company acknowledges
receipt of Holder’s payment of One Thousand Five Hundred Dollars ($1,500) made to the Company within three (3) Business Days
of the Issuance Date. Without limiting Company’s obligation to pay any cash portion of compensation to holder in connection
with the transactions contemplated by the Securities Purchase Agreement (the “Bridge Financing Transaction”),
Holder acknowledges that Company has satisfied all obligations to issue a warrant or other equity compensation to Holder under
the terms of the Engagement Agreement in connection with the Bridge Financing Transaction.
1. EXERCISE
OF WARRANT.
(a) Mechanics
of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section
1(f), this Warrant may be exercised by the Holder, in whole or in part, by delivery (whether via facsimile or otherwise) of a written
notice, in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election
to exercise this Warrant. Within one (1) Trading Day following an exercise of this Warrant as aforesaid, the Holder shall deliver
payment to the Company of an amount equal to the Per Share Exercise Price in effect on the date of such exercise multiplied by
the number of Warrant Shares as to which this Warrant was so exercised (the “Extended Exercise Price”) in cash
or via wire transfer of immediately available funds to an account of the Company specified by the Company if the Holder did not
notify the Company in such Exercise Notice that such exercise was made pursuant to a Cashless Exercise (as defined in Section 1(d).
The Holder shall not be required to deliver the original of this Warrant in order to effect an exercise hereunder; however, if
this Warrant is fully exercised, at the request of the Company the Holder shall either promptly return the original of this Warrant
for cancellation or promptly certify to the Company that the Warrant has been cancelled or destroyed. Execution and delivery of
an Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as cancellation of the original
of this Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares. Execution
and delivery of an Exercise Notice for all of the then-remaining Warrant Shares shall have the same effect as cancellation of the
original of this Warrant after delivery of the Warrant Shares in accordance with the terms hereof. On or before the first (1st)
Trading Day following the date on which the Company has received a fully-completed and executed Exercise Notice, the Company shall
transmit by facsimile or email (with an attachment in PDF format) an acknowledgment of confirmation of receipt of such an Exercise
Notice, in the form attached hereto as Exhibit B, to the Holder and the Company’s transfer agent (the “Transfer
Agent”). On or before the third (3rd) Trading Day following the date on which the Company has received such
Exercise Notice and received the Extended Exercise Price, if the Holder did not notify the Company in the Exercise Notice that
the exercise was made pursuant to a Cashless Exercise, the Company shall (X) provided that the Transfer Agent is participating
in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, upon the request of the
Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to the exercise to the
Holder’s or its designee’s balance account with DTC through its Deposit/ Withdrawal at Custodian system, or (Y) if
the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the Holder
or, at the Holder’s instruction pursuant to the Exercise Notice, the Holder’s agent or designee, in each case, sent
by reputable overnight courier to the address as specified in the applicable Exercise Notice, a certificate, registered in the
Company’s share register in the name of the Holder or its designee (as indicated in the applicable Exercise Notice), for
the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise. Upon delivery of an Exercise Notice,
the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to
which this Warrant has been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account
or the date of delivery of the certificates evidencing such Warrant Shares (as the case may be). If this Warrant is submitted in
connection with any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted
for exercise is greater than the number of Warrant Shares being acquired upon an exercise, then, at the request of the Holder,
the Company shall as soon as practicable and in no event later than three (3) Business Days (subject to surrender of the original
of this Warrant to the Company for cancellation or certification from the Holder that the original of this Warrant has been cancelled
or destroyed) after any exercise and at its own expense, issue and deliver to the Holder (or its designee) a new Warrant (in accordance
with Section 7(d)) representing the right to purchase the number of Warrant Shares purchasable immediately prior to such exercise
under this Warrant, less the number of Warrant Shares with respect to which this Warrant is exercised. No fractional shares of
Common Stock are to be issued upon the exercise of this Warrant, but rather the Holder shall only exercise this Warrant for a whole
number of shares, and if the Holder exercises this Warrant for a number of shares that includes a fractional share (by reason of
Cashless Exercise or otherwise) the number of shares of Common Stock to be issued shall be rounded up to the nearest whole number.
The Company shall pay any and all taxes and fees which may be payable with respect to the issuance and delivery of Warrant Shares
upon exercise of this Warrant.
(b) Exercise
Price. The term “Per Share Exercise Price” shall mean $0.01 per Warrant Share.
(c) Number
of Shares. The total number of Warrant Shares subject to this Warrant is set forth in the first paragraph of the preamble of
this Warrant. Upon any exercise of this Warrant, the remaining number of Warrant Shares subject to this Warrant will be reduced
by the number of shares with respect to which this Warrant is exercised, which, for the avoidance of doubt, in the case of Cashless
Exercise will be greater than the number of shares received upon such exercise.
(d) Company’s
Failure to Timely Deliver Securities. If the Company is a Reporting Company (as herein defined) and the Company improperly
fails, to issue to the Holder within three (3) Trading Days after receipt of the applicable Exercise Notice, properly indicating
the exercise amount and whether or not it is by Cashless Exercise (the “Required Delivery Date”), (x) a certificate
for the number of shares of Common Stock to which the Holder is entitled and register such shares of Common Stock on the Company’s
share register or (y) to credit the Holder’s balance account with DTC for such number of shares of Common Stock to which
the Holder is entitled upon the Holder’s exercise of this Warrant (as the case may be) (a “Delivery Failure”),
and if on or after the business day immediately following the Required Delivery Date the Holder (or any other Person on behalf
of the Holder) purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale
by the Holder of all or any portion of the number of shares of Common Stock Holder so anticipated receiving from the Company as
a result of such exercise, then, in addition to all other remedies available to the Holder, the Company shall, within four (4)
Business Days after the Holder’s request, in the Holder’s discretion, either (I) pay cash to the Holder in an amount
equal to the Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for
the shares of Common Stock so purchased (including, without limitation, by any other Person in respect, or on behalf, of the Holder)
(the “Buy-In Price”), at which point the Company’s obligation to so issue and deliver such certificate
or credit the Holder’s balance account with DTC for the number of shares of Common Stock to which the Holder is entitled
upon the Holder’s exercise hereunder (as the case may be) (and to issue such shares of Common Stock) shall terminate, or
(II) promptly honor its obligation to so issue and deliver to the Holder a certificate or certificates representing such shares
of Common Stock or credit the Holder’s balance account with DTC for the number of shares of Common Stock to which the Holder
is entitled upon the Holder’s exercise hereunder (as the case may be) and pay cash to the Holder in an amount equal to the
excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock multiplied by (B) the lowest
Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date of the applicable Exercise Notice
and ending on the date of such issuance and payment under this clause (II). “Reporting Company” shall mean a
company subject to the periodic reporting requirements under Sections 13 or 15(d) of the Securities Exchange Act.
(e) Cashless
Exercise. Notwithstanding anything contained herein to the contrary (other than Section 1(f) below), whether or not at the
time of such exercise a registration statement is effective (or the prospectus contained therein is available for use) for the
resale by the Holder of all of the Warrant Shares, then the Holder may, in its sole discretion, exercise this Warrant in whole
or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment
of the Extended Exercise Price, elect instead to receive upon such exercise the “Net Number” of shares of Common Stock
determined according to the following formula (a “Cashless Exercise”):
Net Number = (A
x B) - (A x C)
B
For purposes of the
foregoing formula:
A= the total number of shares with
respect to which this Warrant is then being exercised.
B= as applicable: (i) the Closing
Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise
Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as
defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the Bid Price
of the Common Stock as of the time of the Holder’s execution of the applicable Exercise Notice if such Exercise Notice is
executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter pursuant
to Section 1(a) hereof or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the
date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 1(a)
hereof after the close of “regular trading hours” on such Trading Day, or (iv) if the Common Stock is not listed on
any Eligible Market and “B” is determined in connection with an Illiquid Exit Transaction, the fair market value of
the Common Stock as determined by the Appraiser in its sole discretion.
C= the
Per Share Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
(f) Disputes.
In the case of a dispute as to the determination of the Per Share Exercise Price or the arithmetic calculation of the number of
Warrant Shares issuable hereunder generally or to be issued pursuant to the terms hereof upon a Cashless Exercise, the Company
shall promptly issue to the Holder the number of Warrant Shares that are not disputed and resolve such dispute in accordance with
Section 13.
(g) Insufficient
Authorized Shares. The Company shall at all times keep reserved for issuance under this Warrant a number of shares of Common
Stock as shall be necessary to satisfy the Company’s obligation to issue shares of Common Stock hereunder (without regard
to any limitation otherwise contained herein with respect to the number of shares of Common Stock that may be acquirable upon exercise
of this Warrant). If, notwithstanding the foregoing, and not in limitation thereof, at any time while any of this Warrant remain
outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation
to reserve for issuance upon exercise of this Warrant, then the Company shall immediately take all action necessary to increase
the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the number of shares
necessary to satisfy the Company’s obligations hereunder. Without limiting the generality of the foregoing sentence, if not
earlier approved by written consent of the stockholders, as soon as practicable after the date of the occurrence of the failure
to have sufficient authorized shares to permit the exercise of this Warrant (“Authorized Share Failure”), but
in no event later than seventy (70) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting
of its stockholders for the approval of an increase in the number of authorized shares of Common Stock; in connection with such
meeting, the Company shall provide each stockholder with a proxy statement and shall use its best efforts to solicit its stockholders’
approval of such increase in authorized shares of Common Stock and to cause its board of directors to recommend to the stockholders
that they approve such proposal.
(h)
Registration Rights. The Holder will have the piggy-back and demand registration rights set forth in a separate registration
rights agreement to be executed and delivered by the Company on the date of initial issuance of this Warrant.
2. ADJUSTMENT
OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Per Share Exercise Price and number of Warrant Shares issuable upon exercise
of this Warrant are subject to adjustment from time to time as set forth in this Section 2.
(a) Stock
Dividends and Splits. (i) Without limiting any provision of Section 4, if the Company, at any time on or after the date of
the original issuance date of this Warrant and while this Warrant remains outstanding and is not completely exercised, (A) pays
a stock dividend on one or more classes of its then outstanding shares of Common Stock or otherwise makes a distribution on any
class of capital stock that is payable in shares of Common Stock, (B) subdivides (by any stock split, stock dividend, recapitalization
or otherwise) one or more classes of its then outstanding shares of Common Stock into a larger number of shares or (C) combines
(by combination, reverse stock split or otherwise) one or more classes of its then outstanding shares of Common Stock into a smaller
number of shares (the events in clauses (A), (B) and (C) are “Adjustment Events”), then in each such case the
Per Share Exercise Price then in effect shall be multiplied 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 (i.e., a proportional adjustment), and the number of Warrant Shares for which this
Warrant is exercisable shall be inversely proportionally adjusted so that such adjusted number of Warrant Shares multiplied by
such adjusted Per Share Exercise Price shall be equal to the number of Warrant Shares for which this Warrant was exercisable immediately
prior to such adjustment multiplied by Per Share Exercise Price in effect as of immediately prior to such adjustment. Any adjustment
made pursuant to clause (A) of this paragraph shall become effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (B) or (C) of this paragraph
shall become effective immediately after the effective date of such subdivision or combination.
(b) Other
Events. In the event that the Company (or any subsidiary or affiliate of the Company) shall take any action to which the provisions
hereof are not strictly applicable, or, if applicable, would not operate to protect the Holder from dilution or if any event occurs
of the type contemplated by the provisions of this Section 2 but not expressly provided for by such provisions (including, without
limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features, an “Other
Adjustment Event”), then the Company’s board of directors shall in good faith determine and implement an appropriate
adjustment in the Per Share Exercise Price and number of Warrant Shares, provided that no such adjustment pursuant to this Section
2(b) will increase the Per Share Exercise Price or decrease the number of Warrant Shares as otherwise determined pursuant to this
Section 2; provided further that if the Holder does not reasonably accept such adjustments as appropriately protecting its interests
hereunder against such dilution, then the Company’s board of directors and the Holder shall agree, in good faith, upon an
independent investment bank of nationally recognized standing to make such appropriate adjustments, whose determination shall be
final and binding and whose fees and expenses shall be borne by the Company. For the avoidance of doubt, an “Other Adjustment
Event” shall not include a bona fide financing transaction in which the Company sells its securities for the principal
purpose of raising working capital or other operating capital or any issuance or grant to an employee, director or consultant of
the Company (or any subsidiary or affiliate of the Company) under an incentive stock plan approved by the board of directors of
the Company.
(c) Calculations.
All calculations under this Section 2 shall be made by rounding to the nearest cent or the nearest 1/100th of a share,
as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or
for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.
3. RIGHTS UPON DISTRIBUTION OF ASSETS. In addition to any adjustments pursuant to Section
2 above, if at any time the Company shall declare or make any dividend or other distribution of its assets (or rights to
acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without
limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off,
reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a
“Distribution”), at any time after the issuance of this Warrant while this Warrant remains outstanding,
then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder
would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant immediately before the date on which a record is taken for such Distribution, or, if no such record is taken,
the date as of which the record holders of shares of Common Stock are to be determined for the participation in such
Distribution.
4. PURCHASE
RIGHTS; FUNDAMENTAL TRANSACTIONS.
(a) Purchase
Rights. In addition to any adjustments pursuant to Section 2(a) or 2(b) above, if at any time while this Warrant remains outstanding
and is not fully exercised, the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock,
warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase
Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon
complete exercise of this Warrant immediately before the date on which a record is taken for the grant, issuance or sale of such
Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined
for the grant, issue or sale of such Purchase Rights.
(b) Fundamental
Transactions. So long as this Warrant remains outstanding and is not fully exercised, the Company shall not enter into or be
party to a Fundamental Transaction unless (i) the Successor Entity assumes in writing all of the obligations of the Company
under this Warrant and Registration Rights Agreement in accordance with the provisions of this Section 4(b) pursuant to written
agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder prior to such Fundamental Transaction
(which approval shall not be unreasonably withheld, conditioned or delayed), including agreements to deliver to the Holder in exchange
for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance
to this Warrant, including, without limitation, exercisability for a corresponding number of shares of capital stock equivalent
to the shares of Common Stock acquirable and receivable upon exercise of this Warrant prior to such Fundamental Transaction, and
with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the
relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock,
such adjustments to the number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction) or (ii) the Successor Entity
(including for this purpose any applicable Parent Entity rather than such Successor Entity itself) assumes in writing all the obligations
of the Company under this Warrant and the Successor Entity is a publicly traded corporation whose common stock is quoted on or
listed for trading on an Eligible Market (the “Resulting Stock”) and this Warrant becomes exercisable for Resulting
Stock or (iii) the Fundamental Transaction is an Illiquid Exit Transaction and the Successor Entity (including for this purpose
any applicable Parent Entity rather than such Successor Entity itself) stands ready to or tenders to perform or otherwise obligates
itself in writing to perform the obligations under Section 4(c) below, including without limitation to pay the Put Price to Holder
upon timely election of the Holder to exercise its put rights thereunder by delivering a Put Notice. Upon the consummation of each
Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of the
applicable Fundamental Transaction, the provisions of this Warrant and, to the extent applicable under clause (i) above (if applicable),
the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise
every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other applicable
Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein. In connection with
any Fundamental Transaction, Holder will consider and negotiate in good faith any proposed change to this Warrant or the Transaction
Documents requested in good faith by the Successor Entity. Upon consummation of each Fundamental Transaction, the Successor Entity
shall deliver to the Holder confirmation that there shall be issued upon exercise of this Warrant at any time after the consummation
of the applicable Fundamental Transaction, in lieu of the shares of Common Stock (or other securities, cash, assets or other property
(except such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable thereafter)) issuable
upon the exercise of this Warrant prior to the applicable Fundamental Transaction, such shares of Resulting Stock (or its equivalent)
of the Successor Entity (including, if applicable, the applicable Parent Entity) which the Holder would have been entitled to receive
upon the happening of the applicable Fundamental Transaction had this Warrant been exercised immediately prior to the applicable
Fundamental Transaction (without regard to any limitations on the exercise of this Warrant), as adjusted as may be applicable in
accordance with the provisions of this Warrant. In addition to and not in substitution for any other rights hereunder (but without
duplication of proceeds or consideration under Section 3 or 4(a) above or otherwise), while this Warrant is outstanding, prior
to the consummation of each Fundamental Transaction and pursuant to which holders of shares of Common Stock are entitled to receive
securities or other assets with respect to or in exchange for shares of Common Stock (a “Corporate Event”),
the Company shall make appropriate provision to insure that the Holder will thereafter have the right to receive upon an exercise
of this Warrant at any time after the consummation of the applicable Fundamental Transaction but prior to the Expiration Date,
in lieu of the shares of the Common Stock (or other securities, cash, assets or other property (except such items still issuable
under Sections 3 and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the exercise of the Warrant prior
to such Fundamental Transaction, such shares of stock, securities, cash, assets or any other property whatsoever (including warrants
or other purchase or subscription rights) which the Holder would have been entitled to receive upon the happening of the applicable
Fundamental Transaction had this Warrant been exercised immediately prior to the applicable Fundamental Transaction (without regard
to any limitations on the exercise of this Warrant). Provision made pursuant to the preceding sentence shall be in a form and substance
reasonably satisfactory to the Holder. After a Fundamental Transaction in which the proceeds paid to holders of shares Common Stock
are entirely or substantially all cash (a “Cash Exit Transaction”), upon exercise of this Warrant in lieu of
shares of Common Stock, but without limiting Holder’s rights under Sections 3 and 4(a), the holder shall receive such amount
of cash equal to the amount that Holder would have received had such exercise occurred immediately prior to the closing of such
Cash Exit Transaction; in connection with any Cash Exit Transaction, Holder may deliver an Exercise Notice contingent on the consummation
of such Cash Exit transaction.
(c) Put
Right. In the event of an Illiquid Exit Transaction, notwithstanding the foregoing and the provisions of Section 4(b) above,
at the signed written request of the Holder, before the consummation of such Illiquid Exit Transaction to the Company, or, after
the consummation of such Illiquid Exit Transaction to the Successor Entity or to the Parent Entity of the Successor Entity (as
the case may be, the “IET Buyer”), that the Warrant be purchased under this Section 4(b) (the “Put
Notice”), such Put Notice to be delivered or not in the sole discretion of the Holder at any time during the Put Notice
Period, the Company or, after the consummation of such Illiquid Exit Transaction, the IET Buyer (as the case may be, the “Put
Purchaser”) shall purchase this Warrant from the Holder upon the Put Closing Date for a cash payment in the amount of
the Put Price. The “Put Notice Period” shall begin on the earliest to occur of (i) the public disclosure or
notice to the Holder from the Company of any Illiquid Exit Transaction or (ii) the Holder first becoming aware of any Illiquid
Exit Transaction, and shall end on the date that is ninety (90) days after the earliest to occur of (A) public disclosure of the
consummation of such Illiquid Exit Transaction by the Company pursuant to a Current Report on Form 8-K filed with the SEC or (B)
notice to the Holder from the Put Purchaser that such Illiquid Exit Transaction has been consummated. If applicable, at its own
election or the written election of the Holder, the Put Purchaser shall use commercially reasonable efforts to engage, at the expense
of the Put Purchaser within the later of two (2) Business Days after receipt such election or within five (5) Business Days after
receipt of the Put Notice if the Holder and the Put Purchaser have not agreed upon the Put Price within three (3) Business Days,
the Appraiser to determine the Appraised Value. The “Put Closing Date” shall occur only if such Illiquid Exit
Transaction is consummated, and shall occur on the date of the consummation of such Illiquid Exit Transaction or, if the Put Notice
is received after the consummation of such Illiquid Exit Transaction, shall occur on a date selected by the IET Buyer within thirty
(30) days of receipt of the Put Notice by the IET Buyer; provided that if the Put Price has not been determined before the Put
Closing Date, the Put Closing Date shall be on a date that is selected by the IET Buyer that is within three (3) Business Days
of such determination of the Put Price. Promptly after the delivery of the Put Notice, Holder and the Put Purchaser will attempt
in good faith to agree upon the Put Price. The “Put Price” shall be the amount agreed by Holder and the Put
Purchaser, or at the election of either Holder or the Put Purchaser shall be the Appraised Value; provided that if the Holder so
notifies the Put Purchaser in the Put Notice the Put Price shall, notwithstanding anything in the contrary in this definition,
be an amount equal to the “Net Number” (as defined in Section 1(e)) multiplied by the number “B” (as determined
in accordance such Section 1(e)). “Appraised Value” means an amount in U.S. Dollars equal the value determined
by the Appraiser, as of the date of the consummation of the Illiquid Exit Transaction, of the proceeds of the Illiquid Exit Transaction
that would have been received by the Holder had the Holder immediately prior to the consummation of such Illiquid Exit Transaction
had exercised this Warrant in full pursuant to a Cashless Exercise and received the proceeds from the consummation of such Illiquid
Exit Transaction attributable to the Common Stock that would have been received upon such Cashless Exercise. “Appraiser”
shall mean Valuation Research Corporation (“VRC”) or if VRC is unavailable, Duff & Xxxxxx (“Xxxx”)
or if Duff is unavailable such other appraiser of similar standing that is selected by Holder and reasonably acceptable to the
Company. The Put Purchaser shall instruct the Appraiser to determine the Appraised Value within ten (10) Business Days after the
Appraiser receives the submissions of the Holder and the Put Purchaser, solely on the basis of the submissions of the Holder and
the Put Purchaser (the “Appraisal Parties”) and, subject to clause (y) below, not on the basis of an independent
review; the Put Purchaser shall instruct the Appraiser: (x) to assign a value as to any particular asset, liability or other item
relevant to its determination no higher than the highest value asserted by either of the Appraisal Parties and no lower than the
lowest value asserted by either of the Appraisal Parties, (y) to draw inferences and make conclusions in its own discretion based
on the submissions of the Appraisal Parties but in the event that at least one Appraisal Party has failed to address a necessary
item or factor required for the Appraiser’s determination to use such information from a source other than the submissions
of the Appraisal Parties as the Appraiser deems appropriate to expeditiously complete its determination, and (z) in the event the
consideration paid or to be paid in the Illiquid Exit Transaction is subject to escrow for indemnity relating to representations,
warranties or non-compliance with covenants under the documents governing such Illiquid Exit Transaction, to deem the consideration
as received for the purposes of determining the Appraised Value, but in the event the consideration to be paid is subject to an
earn out or future contingency, to determine that the Put Price may be paid in installments once such earn out or future contingency
is determined in accordance with one or more installments based on an aggregate Appraised Value apportioned among such installments.
The Put Purchaser and the Holder shall make their submissions within ten (10) Business Days of the engagement of the Appraiser,
but the Appraiser shall, in its sole discretion be permitted to consider late submissions to the extent the Appraiser determines
that the late submission was delayed for good reason and the late submission would materially affect its determination. In the
event that there is a dispute regarding any matter that has been agreed to be resolved pursuant to Section 13, the Put Purchaser
shall instruct the Appraiser to delay commencement of work until such dispute has been resolved in accordance with Section 13,
and the Appraiser shall consider as conclusive the determination of the investment bank or accounting firm made under Section 13
with respect to such matter. In the event that either the Put Purchaser or the Holder assert to the Appraiser that the consideration
to be received pursuant to the consummation of such Illiquid Exit Transaction cannot be determined because the provisions governing
such consideration (the “Proceeds Provisions”) are under negotiation or are otherwise not final, the Put Purchaser
and the Holder shall nevertheless make their submissions, but will be permitted to make supplemental submissions within five (5)
Business Days of learning that such Proceeds Provisions have become final, and the Appraiser will not deliver its report until
it has reviewed such final Proceeds Provisions and any timely submissions regarding such final Proceeds Provisions. The Put Purchaser
shall instruct the Appraiser to deliver a written report determining the Appraised Value together with a reasonably detailed written
summary of reasons supporting such determination. The Appraised Value shall be final and binding on the Holder and the Put Purchaser
in the absence of fraud or manifest error. Upon payment of the Put Price to the Holder from any source (including without limitation
out of any escrow established for the Illiquid Exit Transaction), this Warrant shall be deemed cancelled, and the Holder shall
surrender the original of this Warrant to the Put Purchaser for cancellation or deliver a Lost Warrant Affidavit within three (3)
Business Days after such payment.
(d) Application.
The provisions of this Section 4 shall apply similarly and equally to successive Fundamental Transactions and Corporate Events
while this Warrant is outstanding and shall be applied as if this Warrant (and any such subsequent warrants) were fully exercisable
and without regard to any limitations on the exercise of this Warrant.
5. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its certificate of incorporation, bylaws or
through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities,
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will
at all times in good faith carry out all the provisions of this Warrant and take all action as may be required to protect the rights
of the Holder in accordance with the terms hereof. Without limiting the generality of the foregoing, while this Warrant remains
outstanding the Company (i) shall not increase the par value of any shares of Common Stock receivable upon the exercise of
this Warrant above the Per Share Exercise Price then in effect, and (ii) shall take all such actions as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock upon the
exercise of this Warrant, including pursuant to Section 1(g).
6. WARRANT
HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, the Holder, solely in its capacity as a
holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company
for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in its capacity as
the Holder of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to
any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance
or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the
Holder of the Warrant Shares which it is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained
in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this
Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors
of the Company. Notwithstanding this Section 6, so long as this Warrant is outstanding, the Company shall provide the Holder with
copies of the same notices and other information given to the stockholders of the Company generally, contemporaneously with the
giving thereof to the stockholders.
7. REISSUANCE
OF WARRANTS.
(a) Transfer
of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company
will forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered as the
Holder may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less
than the total number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section
7(d)) to the Holder representing the right to purchase the number of Warrant Shares not being transferred. The rights and obligations
of the Registration Rights Agreement may be assigned and transferred with any transfer of this Warrant upon the agreement of such
transferee to be joined to and bound by such Registration Rights Agreement, provided, that for the avoidance of doubt, the Holder
together with all transferees will collectively have no greater rights under such Registration Rights Agreement than the Holder
would have alone under such Registration Rights Agreement; and, provided further, in the event of any disagreement between the
Company and Holder (or any holder(s) of a warrant(s) issued upon transfer(s) for this Warrant or such other warrant(s)) or between
the Company and any party to the Registration Rights Agreement, the interpretation of this Warrant (and any other warrant(s) issued
upon transfer(s) of this Warrant or such other warrant(s)) shall be governed exclusively by the agreement of the Company and the
holders of warrants representing a majority of remaining exercisable Warrant Shares under such warrants (this proviso is the “Interpretation
Proviso”). For the abundance of clarity, there is no restriction on the assignment and transfer of this Warrant and the
Registration Rights Agreement, other than as provided by law, rule and regulation and any specific agreements between the Holder
and the Company, including those binding on Holder as a result of receiving this Warrant directly or indirectly as a result of
transfer from a prior holder.
(b) Lost,
Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant (as to which a written certification and the indemnification contemplated below (each
a “Lost Warrant Affidavit”) shall suffice as such evidence), and, in the case of loss, theft or destruction,
of any indemnification undertaking by the Holder to the Company in customary and reasonable form, and reasonably acceptable to
the Company, and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver
to the Holder a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying
this Warrant.
(c) Exchangeable
for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the
Company, for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the
number of Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion
of such Warrant Shares as is designated by the Holder at the time of such surrender; provided, however, no warrants for fractional
shares of Common Stock shall be given.
(d) Issuance
of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant
(i) shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to
purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a)
or Section 7(c), the Warrant Shares designated by the Holder which, when added to the number of shares of Common Stock underlying
the other new Warrants issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying this
Warrant), (iii) shall have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date,
and (iv) shall have the same rights and conditions as this Warrant; provided that, for the avoidance of doubt, such this Warrant
and any new Warrants in the hands of transferees shall be subject to the Interpretation Proviso.
8. NOTICES.
The Company shall provide the Holder with prompt written notice of all actions taken pursuant to this Warrant, including in reasonable
detail a description of such action and the reason therefor. Without limiting the generality of the foregoing, so long as this
Warrant is outstanding, the Company will give written notice to the Holder (i) promptly, but in any event within five (5) days,
after each adjustment of the Per Share Exercise Price or the number of Warrant Shares is adjusted (other than as a result of an
adjustment to the Per Share Exercise Price), as may be applicable, setting forth in reasonable detail, and certifying, the calculation
of such adjustment(s) and (ii) at least fifteen (15) days prior to the date on which the Company closes its books or takes a record
(A) with respect to any dividend or distribution upon the shares of Common Stock, (B) with respect any dividend or distribution
in the form of any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities
or other property to the holders of shares of Common Stock or (C) for determining rights to vote with respect to any Fundamental
Transaction, dissolution or liquidation, provided in each case that if the Company is a Reporting Company such information shall
be made known to the public prior to or in conjunction with such notice being provided to the Holder and (iii) at least ten (10)
Trading Days prior to the consummation of any Fundamental Transaction. If the Company is a Reporting Company, to the extent that
any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of its subsidiaries,
the Company shall no later than simultaneously file such notice with the SEC (as defined in the Securities Purchase Agreement)
pursuant to a Current Report on Form 8-K.
Any notices, consents,
waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will
be deemed to have been delivered: (i) upon receipt, if delivered personally; (ii) when sent, if sent by facsimile (provided confirmation
of transmission is mechanically or electronically generated and kept on file by the sending party); (iii) when sent, if sent by
e-mail (provided that such sent e-mail is kept on file (whether electronically or otherwise) by the sending party and the sending
party does not receive an automatically generated message from the recipient’s e-mail server that such e-mail could not be
delivered to such recipient) and (iv) if sent by overnight courier service, one (1) Trading Day after deposit with an overnight
courier service with next day delivery specified, in each case, properly addressed to the party to receive the same. If notice
is given by facsimile or email, a copy of such notice shall be dispatched no later than the next business day by first class mail,
postage prepaid. The addresses, facsimile numbers and e-mail addresses for such communications shall be:
If to the Company:
DvineWave Inc.
000 Xxxxxxx Xx.
Xxx Xxxxx, XX 00000
E-mail: xxxxxxxx@xxxxxxxxx.xxx
Attention: Xxxxxxx Xxxxxxx, President
With a copy (for informational
purposes only) to:
K&L Gates LLP
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Fax Number: 000.000.0000
E-mail: xxxx.xxxxx@xxxxxxx.xxx
Attention: Xxxx X. Xxxxx, Esq.
If to a Holder, to
its address, facsimile number or e-mail address set forth herein or on the books and records of the Company.
Or, in each of the above instances, to
such other address, facsimile number or e-mail address and/or to the attention of such other Person as the recipient party has
specified by written notice given to each other party at least five (5) days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender’s facsimile machine containing the time, date and recipient facsimile number or (C)
provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt from
an overnight courier service in accordance with clause (i), (ii) or (iv) above, respectively. A copy of the e-mail transmission
containing the time, date and recipient e-mail address shall be rebuttable evidence of receipt by e-mail in accordance with clause
(iii) above.
9. AMENDMENT
AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant (other than Section 1(f)) may be amended and
the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the
Company has obtained the written consent of the Holder. Holder shall be entitled, at its option, to the benefit of any amendment
of any other similar warrant. No waiver shall be effective unless it is in writing and signed by an authorized representative of
the waiving party.
10. SEVERABILITY.
If any provision of this Warrant is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent
jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the
broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect
the validity of the remaining provisions of this Warrant so long as this Warrant as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties
or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good
faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which
comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
11. GOVERNING
LAW. This Warrant shall be governed by and construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the State of New York. The Company and Holder each
hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough
of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude
the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s
obligations to the Holder or to enforce a judgment or other court ruling in favor of the Holder. THE COMPANY AND HOLDER EACH
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT 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 WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.
12. CONSTRUCTION;
HEADINGS. This Warrant shall be deemed to be jointly drafted by the Company and the Holder and shall not be construed against
any Person as the drafter hereof. The headings of this Warrant are for convenience of reference and shall not form part of, or
affect the interpretation of, this Warrant. Terms used in this Warrant but defined in the other Transaction Documents shall have
the meanings ascribed to such terms on the Closing Date (as defined in the Securities Purchase Agreement) in such other Transaction
Documents unless otherwise consented to in writing by the Holder.
13. DISPUTE
RESOLUTION. In the case of a dispute as to the determination of the Per Share Exercise Price or the number of Warrant Shares
for which this Warrant is exercisable or the number of Warrant Shares to be issued upon a Cashless Exercise, or the Closing Sale
Price or the Bid Price, or other fair market value (other than the Appraised Value in connection with Holder’s exercise of
its put rights under Section 4(c) in connection with an Illiquid Exit Transaction, which shall be determined by the Appraiser)
if applicable, the Company or the Holder (as the case may be) shall submit the disputed determinations or arithmetic calculations
(as the case may be) (i) within two (2) Business Days after receipt of the applicable notice giving rise to such dispute to the
Company or the Holder (as the case may be) or if later within two (2) Business Days after receipt of formal notice from the other
party that there is a disagreement and that such party is invoking dispute resolution under this Section 13 (the “Dispute
Resolution Notice”) or (ii) if no notice gave rise to such dispute but either Company or Holder learns that there is
a disagreement, within two (2) Business Days after receipt of a Dispute Resolution Notice. After dispatch and receipt of any Dispute
Resolution Notice, Holder and the Company will meet and confer (in person or, at the election of either party, by telephone) to
attempt in good faith to resolve the disagreement. If the Holder and the Company are unable to agree upon such determination or
calculation (as the case may be) within three (3) Business Days (the Business Day following the end of such three (3) Business
Day period is the “Submission Deadline”) of the later of (x) the receipt of the Dispute Resolution or (y) three
(3) Business Days after the request for or receipt of (whichever occurs first) each other’s disputed determination or arithmetic
calculation being submitted to the Company or the Holder (as the case may be), then the Company shall, on or about the Submission
Deadline submit (a) the disputed determination or calculation of Closing Sale Price or the Bid Price or other applicable fair market
value (as the case may be) to an independent, reputable investment bank of national standing selected by the Holder and reasonably
acceptable to the Company (if Holder has provided contact information to engage such a bank, or if Holder has not provided such
information, an investment bank selected by the Company that is reasonably acceptable to Holder) or (b) any other disputed determination
or calculation of the Warrant Shares to the Company’s independent, outside accountant. The Company shall cause at its expense
the investment bank or the accountant (as the case may be) to perform the determinations or calculations (as the case may be) and
request that the investment bank or accountant notify the Company and the Holder of the results no later than ten (10) Business
Days from the time it receives such disputed determinations or calculations (as the case may be). Such investment bank’s
or accountant’s determination or calculation (as the case may be) shall be binding upon all parties absent demonstrable error.
In the event the disputed calculation or determination is determined to be within three percent (3%) of the Company’s determination,
the Holder shall reimburse the Company for the fees of such investment bank or accountant in connection with their work on the
disagreement, and if Holder does not reimburse the Company within five (5) Business Days (or if earlier, before the next cash payment
from the Company to the Holder is due under this Warrant), the Company may, at the Company’s election, but shall not be required
to offset such fees against any amounts owed by the Holder to the Company from time to time, or may, at the Company’s election,
but shall not be required to, reduce the number of Warrant Shares for which this Warrant is exercisable as if the Holder had effected
a Cashless Exercise hereunder for a number of shares sufficient to repay such amount owed in the form of cancellation of the shares
issued upon such deemed Cashless Exercise at a value per such share equal to the value determined as “B” under Section
1(e) hereof as of the date of the last day of such five (5) Business Day Period.
14. REMEDIES,
CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative
and in addition to all other remedies available under this Warrant and the Registration Rights Agreement and any other agreements
between the Company and one or more of the Holders, at law or in equity (including a decree of specific performance and/or other
injunctive relief); provided, the Holder or any Person claiming through or by right of the Holder shall not be entitled to any
duplication or multiplication of damages (such as but not limited to a recovery or mitigation of damages in the form of exercise
of Buy-In Rights followed by pursuit by Holder of damages that would be duplicative of such recovery or mitigation); provided further
that the Company shall not be liable for incidental or consequential damages for any failure by the Company to comply with the
terms of this Warrant even if the Company has been advised of the possibility thereof. The Company covenants to the Holder that
there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided
for herein with respect to payments, exercises and the like (and the computation thereof) shall be the amounts to be received by
the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance
thereof). The Company acknowledges that a breach by it of its obligations to issue Warrant Shares on exercise hereof will cause
irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that,
in the event of any such breach or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other
security being required. The Company shall provide all information and documentation to the Holder that is requested by the Holder
to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Warrant (including, without
limitation, compliance with Section 2 hereof). The issuance of shares and certificates for shares as contemplated hereby upon the
exercise of this Warrant shall be made without charge to the Holder or such shares for any issuance tax or other costs in respect
thereof, provided that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved
in the issuance and delivery of any certificate in a name other than the Holder or its agent on its behalf.
15. TRANSFER.
This Warrant may be offered for sale, sold, transferred or assigned without the consent of the Company, subject to applicable law
and any other agreements between the Company and the Holder or any previous holder of a warrant that transferred directly or indirectly
this Warrant to the Holder.
16. CERTAIN
DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:
(a) “Bid
Price” means, for any security as of the particular time of determination, the bid price for such security on the Principal
Market as reported by Bloomberg as of such time of determination, or, if the Principal Market is not the principal securities exchange
or trading market for such security, the bid price of such security on the principal securities exchange or trading market where
such security is listed or traded as reported by Bloomberg as of such time of determination, or if the foregoing does not apply,
the bid price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by
Bloomberg as of such time of determination, or, if no bid price is reported for such security by Bloomberg as of such time of determination,
the average of the bid prices of any market makers for such security as reported in the “pink sheets” by OTC Markets
Group Inc. (formerly Pink Sheets LLC) as of such time of determination. If the Bid Price cannot be calculated for a security as
of the particular time of determination on any of the foregoing bases, the Bid Price of such security as of such time of determination
shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to
agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section 13.
All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar
transaction during such period.
(b) “Bloomberg”
means Bloomberg, L.P.
(c) “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed.
(d) “Closing
Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market,
as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing
trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if
the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such
security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg,
or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin
board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average
of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc.
(formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing
bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company
and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute
shall be resolved in accordance with the procedures in Section 13. All such determinations shall be appropriately adjusted
for any stock dividend, stock split, stock combination or other similar transaction during such period.
(e) “Common
Stock” means (i) the Company’s shares of common stock, $0.00001 par value per share, and (ii) any capital
stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common
stock.
(f) “Convertible
Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly
or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any
shares of Common Stock.
(g) “Eligible
Market” means The New York Stock Exchange, the NYSE Amex, the Nasdaq Global Select Market, the Nasdaq Global Market,
the Nasdaq Capital Market or the Principal Market.
(h) “Expiration
Date” means the date that is the fifth (5th) anniversary of the Issuance Date or, if such date falls on a
day other than a Business Day or on which trading does not take place on the Principal Market (a “Holiday”),
the next date that is not a Holiday.
(i) “Fundamental
Transaction” means that (i) the Company or any of its Subsidiaries shall, directly or indirectly, in one or more related
transactions, (1) consolidate or merge with or into (whether or not the Company or any of its Subsidiaries is the surviving corporation)
any other Person, or (2) 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 (3) allow any other Person to make a purchase, tender or exchange offer
that is accepted by the holders of more than 50% of the outstanding shares of Voting Stock of the Company (not including any shares
of Voting Stock of the Company held by the Person or Persons making or party to, or associated or affiliated with the Persons making
or party to, such purchase, tender or exchange offer), or (4) 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 whereby such other Person acquires more than 50% of the outstanding shares of Voting Stock of the Company (not including
any shares of Voting Stock of the Company already held by the other Person or other Persons making or party to, or associated or
affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination), or
(5) (I) reorganize, recapitalize or reclassify the Common Stock, (II) effect or consummate a stock combination, reverse stock split
(other than a stock split or reverse stock split effected in connection with an underwritten initial public offering in consultation
with the underwriter for such public offering (the “Authorized Reverse Split”)) or other similar transaction
involving the Common Stock or (III) make any public announcement or disclosure with respect to any stock combination, reverse stock
split (other than solely with respect to the Authorized Reverse Split) or other similar transaction involving the Common Stock
(including, without limitation, any public announcement or disclosure of (x) any potential, possible or actual stock combination,
reverse stock split (other than the Authorized Reverse Split) or other similar transaction involving the Common Stock or (y) board
or stockholder approval thereof, or the intention of the Company to seek board or stockholder approval of any stock combination,
reverse stock split (other than the Authorized Reverse Split) or other similar transaction involving the Common Stock), or (ii)
any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the Securities
Exchange Act and the rules and regulations promulgated thereunder) is or shall become the “beneficial owner” (as defined
in Rule 13d-3 under the Securities Exchange Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented
by issued and outstanding Voting Stock of the Company.
(j) An
“Illiquid Exit Transaction” means a Fundamental Transaction of any of the following types if the consideration
received by the Company or the holders of the Company’s Common Stock, as may be applicable, in connection with such Fundamental
Transaction is neither substantially or entirely (i) cash or an obligation to pay cash or (ii) Liquid Public Stock: (A) a Fundamental
Transaction contemplated in Section 16(i)(i)(1) where the Company is not the surviving Person in such Fundamental Transaction or,
as may be applicable in the event of a transaction involving a subsidiary of the Company, the Company is not the Parent Entity
after the consummation of such Fundamental Transaction; (B) a Fundamental Transaction contemplated in Section 16(i)(i)(2); (C)
a Fundamental Transaction contemplated by Section 16(i)(i)(3) after which the Common Stock of the Company would not be listed on
the Principal Market or on any Eligible Market or in the event that the Company or, as applicable, the Successor Entity would not
undertake an obligation for the benefit of Holder to maintain such listing until at least five (5) years after the date of such
Fundamental Transaction; (D) a Fundamental Transaction contemplated by Section 16(i)(i)(4); or (E) a Fundamental Transaction contemplated
by Section 16(ii) after which the Common Stock of the Company would not be listed on the Principal Market or on any Eligible Market
or in the event that the Company or, as applicable, the Successor Entity would not undertake an obligation for the benefit of Holder
to maintain such listing until at least five (5) years after the date of such Fundamental Transaction.
(k) The
“Initial Public Offering” is defined as the consummation of a firm commitment underwritten initial public offering
of the Company’s Common Stock that raises at least $10,000,000 in gross proceeds.
(l) “Liquid
Public Stock” with respect to any Fundamental Transaction means consideration for such Fundamental Transaction in the
form of common stock or another class or series of capital stock of that is registered and freely tradable and listed or quoted
on any Eligible Market.
(m) “Notes”
means those certain convertible secured promissory notes of the Company offered in a private placement and issued under the terms
of the Securities Purchase Agreements entered into by various investors with the Company, all of like tenor, initially dated on
or about May 16, 2013.
(n) “Options”
means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
(o) “Parent
Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock
or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity,
the Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.
(p) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity or a government or any department or agency thereof.
(q) “Principal
Market” means the a national securities exchange in the United States or a recognized United States trading medium which
provides daily reports of the prices at which securities are offered and traded.
(r) “Registration
Rights Agreement” means the registration rights agreement of even date herewith to which the initial Holder of this Warrant
and the Company are party.
(s) “Securities
Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, together with the regulations
promulgated thereunder.
(t) “Securities
Purchase Agreement” means that certain agreement to purchase convertible secured notes of the Company, which agreement
is between the investors in the offering of the Notes on the one hand and the Company on the other hand, entered into on or about
May 16, 2013.
(u) “Successor
Entity” means the Person (or, if so elected by the Holder or otherwise applicable, the Parent Entity) formed by, resulting
from or surviving any Fundamental Transaction or the Person (or, if so elected by the Holder or otherwise applicable, the Parent
Entity) with which such Fundamental Transaction shall have been entered into.
(v) “Trading
Day” means, as applicable, (x) with respect to all price determinations relating to the Common Stock, any day on which
the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common
Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading
Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5
hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or
if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the
hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or
(y) with respect to all determinations other than price determinations relating to the Common Stock, any day on which The New York
Stock Exchange (or any successor thereto) is open for trading of securities.
(w) “Voting
Stock” of a Person means capital stock of such Person of the class or classes pursuant to which the holders thereof have
the general voting power to elect, or the general power to appoint, at least a majority of the board of directors, managers or
trustees of such Person (irrespective of whether or not at the time capital stock of any other class or classes shall have or might
have voting power by reason of the happening of any contingency).
17. MARKET
STAND-OFF. In connection with the initial public offering of the Company’s securities, if any, and upon request of the
managing or lead underwriter made to the Company in connection with such offering, Holder will agree with the Company and the underwriter
not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any securities of the
Company however or whenever acquired (other than those included in the registration, if any) without the prior written consent
of the managing or lead underwriter of such offering, for a period of time (not to exceed three hundred sixty five (365) days)
from the effective date of such registration as may be requested by the Company or such managing underwriters and to execute an
agreement reflecting requirements binding on such Holder that are substantially consistent with this Section 17 as may be requested
by the underwriters at the time of such offering; provided, however that, if during the last seventeen (17) days of the restricted
period the Company issues an earnings release or material news or a material event relating to the Company occurs, or prior to
the expiration of the restricted period the Company announces that it will release earnings results during the sixteen (16) day
period beginning on the last day of the restricted period, then, upon the request of the managing underwriter, to the extent required
by any FINRA rules, the restrictions imposed by this Section 17 shall continue to apply until the end of the third (3rd) trading
day following the expiration of the fifteen (15) day period beginning on the issuance of the earnings release or the occurrence
of the material news or material event. In no event will the restricted period extend beyond four hundred and one (401) days after
the effective date of the registration statement. In order to enforce the restriction set forth above or any other restriction
agreed by Holder, including without limitation any restriction requested by the underwriters of any initial public offering of
the securities of the Company agreed by such Holder, the Company may impose stop-transfer instructions with respect to any security
acquired under or subject to this Agreement until the end of the applicable stand-off period. The Company’s underwriters
shall be beneficiaries of the agreement set forth in this Section 17.
[Signature page follows]
IN WITNESS WHEREOF,
the Company has caused this Amended and Restated Warrant to purchase Common Stock to be duly executed as of this 13th
day of December 2013.
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DVINEWAVE INC. |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: Xxxxxxx Xxxxxxx |
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Title: Chief Executive Officer |
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Acknowledged and Agreed: |
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MDB CAPITAL GROUP LLC |
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By: |
/s/ Xxxxxxx XxXxxxxxxxxxxx |
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Name: |
Xxxxxxx XxXxxxxxxxxxxx |
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Title: |
Authorized Principal |
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EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THIS
WARRANT TO PURCHASE COMMON STOCK
DVINEWAVE INC.
The undersigned holder
hereby exercises the right to purchase _________________ of the shares of Common Stock (“Warrant Shares”) of
DvineWave Inc., a Delaware corporation (the “Company”), evidenced by the Warrant to purchase Common Stock (the
“Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth
in the Warrant.
1. Form
of Exercise Price. The Holder intends that payment of the Extended Exercise Price shall be made as:
____________ a “Cash Exercise”
with respect to _________________ Warrant Shares;
and/or
____________ a “Cashless Exercise”
with respect to _______________ Warrant Shares.
In the event that the
Holder has elected a Cashless Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto, the Holder
hereby represents and warrants that (i) this Exercise Notice was executed by the Holder at __________ [a.m.][p.m.] on the date
set forth below and (ii) if applicable, the Bid Price as of such time of execution of this Exercise Notice was $________.
2. Payment
of Exercise Price. In the event that the Holder has elected a Cash Exercise with respect to some or all of the Warrant Shares
to be issued pursuant hereto, the Holder shall pay the Extended Exercise Price in the sum of $___________________ to the Company
in accordance with the terms of the Warrant.
3. Delivery
of Warrant Shares. The Company shall deliver to Holder, or its designee or agent as specified below, __________ Warrant Shares
in accordance with the terms of the Warrant. Delivery shall be made to Holder, or for its benefit, to the following address:
_______________________
_______________________
_______________________
_______________________
Date: _______________ __, ______
Name of Registered Holder |
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EXHIBIT B
ACKNOWLEDGMENT
The Company
hereby acknowledges this Exercise Notice and hereby directs ______________ to issue the above indicated number of shares of
Common Stock in accordance with the Transfer Agent Instructions dated _________, 20__, from the Company and acknowledged and
agreed to by ___________.