Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of November 10, 2023, between Auddia Inc., a Delaware corporation (the “Company”),
and the purchaser identified on the signature page hereto (the “Purchaser”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities
Act”), and Rule 506 promulgated thereunder, the Company desires to issue and sell to the Purchaser, and the Purchaser desires
to purchase from the Company, securities of the Company.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and the Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1Definitions.
In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the meanings
given to such terms in the Certificate of Designation (as defined herein), and (b) the following terms have the meanings set forth in
this Section 1.1:
“Certificate of Designation”
means the Certificate of Designation of the Series A Preferred Stock of the Company filed with the Secretary of State of Delaware on November
10, 2023.
“Closing Date”
means the date of this Agreement.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Commission”
means the United States Securities and Exchange Commission.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Preferred Stock”
means one share of the Company’s Series A Preferred Stock issued hereunder having the rights, preferences and privileges set forth
in the Certificate of Designation.
“Purchase Price Value”
means $1,000 per share of Preferred Stock.
“Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(d).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(f).
“Securities”
means the Preferred Stock.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Stated Value”
means $1,000 per share of Preferred Stock.
“Subscription Amount”
shall mean, as to the Purchaser, the aggregate amount to be paid for the Preferred Stock purchased hereunder as specified below the Purchaser’s
name as set forth on the signature page hereto executed by the Purchaser under the heading
“Subscription Amount,” in United States dollars.
“Transaction Documents”
means this Agreement, the Certificate of Designation, all exhibits and schedules thereto and hereto and any other documents or agreements
executed in connection with the transactions contemplated hereunder.
ARTICLE II.
PURCHASE AND SALE
2.1Closing.
The Purchaser will purchase an aggregate of $1,000 in Subscription Amount of Preferred Stock in one tranche (“Tranche”). The
Tranche will close on November 10, 2023.
2.2Deliveries.
(a)On
or prior to the Closing Date (or as otherwise indicated below), the Company shall deliver or cause to be delivered to the Purchaser the
following:
(i)This
Agreement duly executed by the Company; and
(ii)the
shares of Preferred Stock in the amount for such Closing as set forth on the signature page hereto
executed by the Purchaser, which number shall be equal to (x) the Subscription Amount for such Closing, divided (y) the Purchase
Price Value.
(b)On
or prior to each Closing Date, the Purchaser shall deliver or cause to be delivered to the Company, as applicable, the following:
(i)This
Agreement duly executed by the Purchaser; and
(i)the
Purchaser’s Subscription Amount for such Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1Representations
and Warranties of the Company. Except as set forth in the SEC Reports, which SEC Reports shall be deemed a part hereof and shall qualify
any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the SEC Reports,
the Company hereby makes the following representations and warranties to the Purchaser:
(a)Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted.
(b)Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.
(c)No Conflicts.
The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the
issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not:
(i) conflict with or violate any provision of the Company’s certificate or articles of incorporation, bylaws or other organizational
or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become
a default) under, result in the creation of any Lien upon any of the properties or assets of the Company, or give to others any rights
of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company debt or otherwise) or other understanding to which the Company is a party or by which any
property or asset of the Company is bound or affected.
(d)Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) a Current Report on Form 8-K
relating to the transactions contemplated by the Transaction Documents, (ii) the notice and/or application(s) to the Company’s applicable
trading market, and (iii) the filing of Form D with the Commission and such filings as are required to be made under applicable state
securities laws (collectively, the “Required Approvals”).
(e)Issuance
of the Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than
restrictions on transfer provided for in the Transaction Documents.
(f)SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two
years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing
materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the
“SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC
Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects
with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any
untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
(g)Private
Placement. Assuming the accuracy of the Purchaser’ representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchaser as contemplated hereby.
The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Company’s trading market.
(h)No
“Bad Actor” Disqualification. The Company has exercised reasonable care to determine whether any Company Covered Person
(as defined below) is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii), as
modified by Rules 506(d)(2) and (d)(3), under the Securities Act (“Disqualification Events”). To the Company’s
knowledge, no Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent required, with any
disclosure obligations under Rule 506(e) under the Securities Act. For purposes of this Agreement, “Company Covered Persons”
are those persons specified in Rule 506(d)(1) under the Securities Act; provided, however, that Company Covered Persons do not include
(a) any Purchaser, or (b) any person or entity that is deemed to be an affiliated issuer of the Company solely as a result of the relationship
between the Company and any Purchaser.
(i)No
Integrated Offering. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.2, neither
the Company, nor any of its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be
integrated with prior offerings by the Company for purposes of (i) the Securities Act which would require the registration of any such
securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any Trading Market on which any of the
securities of the Company are listed or designated.
(j)No
General Solicitation. Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Purchaser and
certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.
3.2Representations
and Warranties of the Purchaser. The Purchaser hereby represents and warrants as of the date hereof and as of each Closing Date to
the Company as follows (unless as of a specific date therein):
(a)Organization;
Authority. The Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar
power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry
out its obligations hereunder and thereunder.
(b)Own Account.
The Purchaser understands that the Securities are “restricted securities” and have not been registered under the Securities
Act or any applicable state securities law and is acquiring the Securities as principal for its own account and not with a view to or
for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities
law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities
law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of
such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting
the Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with applicable federal
and state securities laws).
(c)Purchaser Status.
At the time the Purchaser was offered the Securities, it was, and as of the date hereof it is either: (i) an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer”
as defined in Rule 144A(a) under the Securities Act.
(d)Experience of
the Purchaser. The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. The Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(e)General Solicitation.
The Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the
Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or
any other general solicitation or general advertisement.
(f)No “Bad
Actor” Disqualification. The Purchaser represents and warrants that neither (A) the Purchaser nor (B) any entity that controls
the Purchaser or is under the control of, or under common control with, the Purchaser, is subject to any Disqualification Event, except
for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act and disclosed in writing in reasonable
detail to the Company. The Purchaser represents that the Purchaser has exercised reasonable care to determine the accuracy of the representation
made by the Purchaser in this paragraph, and agrees to notify the Company if the Purchaser becomes aware of any fact that makes the representation
given by the Purchaser hereunder inaccurate.
The Company acknowledges and
agrees that the representations contained in Section 3.2 shall not modify, amend or affect the Purchaser’s right to rely on the
Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other
Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation
of the transaction contemplated hereby.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1Transfer
Restrictions.
(a)The Securities
may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities other than
pursuant to an effective registration statement or Rule 144, to the Company or to an affiliate of a Purchaser or in connection with a
pledge, the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and
reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the
effect that such transfer does not require registration of such transferred Securities under the Securities Act. As a condition of transfer,
any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights and obligations of a Purchaser
under this Agreement.
(b)The
Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Securities in the following
form:
THIS SECURITY HAS 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.
ARTICLE V.
MISCELLANEOUS
5.1Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts
of law thereof.
5.2Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
5.3Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first
indicated above.
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AUDDIA INC. |
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By: /s/ Michael Lawless |
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Name: Michael Lawless |
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Title: Chief Executive Officer |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
IN WITNESS WHEREOF, the undersigned
has caused this Securities Purchase Agreement to be duly executed as of the date first indicated above.
| Name of Purchaser: |
Jeffrey Thramann |
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| Signature of Purchaser: /s / Jeffrey Thramann |
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| Subscription Amount: |
$1,000 |
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| Securities Purchased: |
One (1) Share of Series A Preferred Stock |
