Exhibit 10.3
LOCK-UP AGREEMENT
April 9, 2025
| Re: | (i) Share Exchange Agreement, dated as of March 16, 2025 (the “Exchange Agreement”), by and between Datavault AI Inc. (the “Company”) and NYIAX, Inc. (“NYIAX”), and (ii) Intellectual Property Cross License Agreement, dated as of March 16, 2025 (the “License Agreement”), by and between the Company and NYIAX |
Ladies and Gentlemen:
Defined terms not otherwise defined in this letter agreement (the “Letter Agreement”) shall have the meanings set forth in the Exchange Agreement or in the License Agreement, as applicable.
NYIAX irrevocably agrees with the Company that, from the date hereof until the one-year anniversary of issuance of the Consideration Shares (such period, the “Restriction Period”) NYIAX will not sell, contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any Affiliate of the undersigned or any person in privity with the undersigned or any Affiliate of the undersigned), directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to, any Consideration Shares beneficially owned, or held by the undersigned (the “Securities”), or make any demand for or exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any shares of Datavault Common Stock or publicly disclose the intention to do any of the foregoing. Beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act.
Notwithstanding the foregoing, and subject to the conditions below, NYIAX may transfer the Securities provided that (1) the Company receive a signed lock-up letter agreement (in the form of this Letter Agreement) for the balance of the Restriction Period from each donee, trustee, distributee, or transferee, as the case may be, prior to such transfer, (2) any such transfer shall not involve a disposition for value, (3) such transfer is not required to be reported with the Securities and Exchange Commission in accordance with the Exchange Act and no report of such transfer shall be made voluntarily, and (4) neither the undersigned nor any donee, trustee, distributee or transferee, as the case may be, otherwise voluntarily effects any public filing or report regarding such transfers, with respect to transfer:
| i) | as a bona fide gift or gifts; | |
| ii) | to any immediate family member or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); |
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| iii) | to any corporation, partnership, limited liability company, or other business entity all of the equity holders of which consist of the undersigned and/or the immediate family of the undersigned; | |
| iv) | if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (a) to another corporation, partnership, limited liability company, trust or other business entity that is an Affiliate of the undersigned or (b) in the form of a distribution to limited partners, limited liability company members or stockholders of the undersigned; | |
| v) | if the undersigned is a trust, to the beneficiary of such trust; | |
| vi) | by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned; | |
| vii) | by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement; | |
| viii) | if the undersigned is or was an officer, director or employee of the Company, to the Company pursuant to the Company’s right of repurchase upon termination of the undersigned’s service with the Company; or | |
| ix) | of securities purchased pursuant to the Exchange Agreement or License Agreement, as applicable. |
NYIAX shall also be permitted to use the Securities as collateral for a loan and/or transfer in connection with any financing or capital raising transactions, as long the loan document provides for the ability of the Company to purchase such loan and make repayment in full.
In addition, notwithstanding the foregoing, this Letter Agreement shall not restrict the delivery of shares of Datavault Common Stock to the undersigned upon (i) exercise of any options granted under any employee benefit plan of the Company; provided that any shares of Datavault Common Stock or Securities acquired in connection with any such exercise will be subject to the restrictions set forth in this Letter Agreement; provided further, that such restrictions shall not apply to the transfer, sale or other disposition of any shares of Datavault Common Stock held by the undersigned or issued or issuable pursuant to the Company’s employee benefit plans upon the exercise of any stock options in order to satisfy any tax obligations due as a result of such exercise, (ii) the vesting of any other equity-based awards held by the undersigned through the net issuance by the Company of shares of Datavault Common Stock, in each case in order to satisfy any tax obligations due as a result of such vesting, or (iii) the exercise of warrants; provided that such shares of Datavault Common Stock delivered to the undersigned in connection with such exercise are subject to the restrictions set forth in this Letter Agreement.
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The undersigned acknowledges that the execution, delivery and performance of this Letter Agreement is a material inducement to the Company to complete the transactions contemplated by the Exchange Agreement or License Agreement, as applicable, and the Company shall be entitled to specific performance of the undersigned’s obligations hereunder. The undersigned hereby represents that the undersigned has the power and authority to execute, deliver and perform this Letter Agreement, that the undersigned has received adequate consideration therefor and that the undersigned will indirectly benefit from the closing of the transactions contemplated by the Exchange Agreement or License Agreement, as applicable.
This Letter Agreement may not be amended or otherwise modified in any respect without the written consent of the Company and the undersigned. This Letter Agreement shall be construed and enforced in accordance with the laws of the State of New York without regard to the principles of conflict of laws. The undersigned hereby irrevocably submits to the exclusive jurisdiction of the United States District Court sitting in the Southern District of New York and the courts of the State of New York located in Manhattan, for the purposes of any suit, action or proceeding arising out of or relating to this Letter Agreement, and hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that (i) it is not personally subject to the jurisdiction of such court, (ii) the suit, action or proceeding is brought in an inconvenient forum, or (iii) the venue of the suit, action or proceeding is improper. The undersigned hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by receiving a copy thereof sent to the Company at the address in effect for notices to it under the Exchange Agreement or License Agreement, as applicable, and agrees that such service shall constitute good and sufficient service of process and notice thereof. The undersigned hereby waives any right to a trial by jury. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
This Letter Agreement shall be binding on successors and assigns of the undersigned with respect to the Securities and any such successor or assign shall enter into a similar agreement for the benefit of the Company. This Letter Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provisions hereof be enforced by, any of other Person.
*** SIGNATURE PAGE FOLLOWS***
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This Letter Agreement may be executed in two or more counterparts, all of which when taken together may be considered one and the same agreement.
| NYIAX, inc. | ||
| By: | /s/ Teri Gallo | |
| Name: | Teri Gallo | |
| Title: | Chief Executive Officer | |
By signing below, the Company agrees to enforce the restrictions on transfer set forth in this Letter Agreement.
| DATAVAULT AI Inc. | ||
| By: | /s/ Nathaniel Bradley | |
| Name: | Nathaniel Bradley | |
| Title: | Chief Executive Officer | |
[Signature Page to Lock-Up Agreement]