Item
1.01 Entry into a Material Definitive Agreement.
On September 16,
2016, SITO Mobile, Ltd. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”)
with Cowen & Company, LLC, as representative of the several underwriters named in Schedule A to the Underwriting Agreement
(the “Underwriters”), which provided for the issuance and sale by the Company in an underwritten public offering (the
“Offering”) and the purchase by the Underwriters of 2,666,667 shares of the Company’s common stock, $0.001 par
value per share. Subject to the terms and conditions contained in the Underwriting Agreement, the shares were sold to the Underwriters
at a public offering price of $3.75 per share, less certain underwriting discounts and commissions. The Company also granted the
Underwriters a 30-day option to purchase, severally and not jointly, up to 400,000 additional shares of the Company’s common
stock on the same terms and conditions for the purpose of covering any over-allotments in connection with the Offering, which
option was exercised in full on September 17, 2016. The net offering proceeds to the Company from the Offering (including the
exercise of the over allotment option) are estimated to be approximately $10.3 million, after deducting estimated underwriting
discounts and commissions and other estimated offering expenses. The Offering closed on September 21, 2016.
The
Offering was made pursuant to a prospectus supplement filed with the Securities and Exchange Commission (the “SEC”)
pursuant to Rule 424(b) of the Securities Act of 1933, as amended (the “Securities Act”), dated September 16, 2016,
and an accompanying prospectus dated August 29, 2016, pursuant to the Company’s shelf registration statement on Form S-3
(File No. 333-213221), which was filed with the SEC on August 19, 2016 and declared effective by the SEC on August 29, 2016.
The
Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing,
indemnification obligations of the Company and the Underwriters, including for liabilities under the Securities Act, as amended,
other obligations of the parties and termination provisions. In addition, pursuant to the terms of the Underwriting Agreement,
each director, executive officer and certain other stockholders have entered into an agreement with the Underwriters not to sell,
transfer or otherwise dispose of securities of the Company during the 90-day period following the offering, subject to certain
specified exceptions. The Underwriting Agreement has been filed as Exhibit 1.1 hereto to provide investors and security holders
with information regarding its terms. It is not intended to provide any other factual information about the Company. The representations,
warranties and covenants contained in the Underwriting Agreement were made only for the purposes of such agreement and as of specific
dates, were solely for the benefit of the parties to the Underwriting Agreement, and may be subject to limitations agreed upon
by the contracting parties, including being qualified by confidential disclosures exchanged between the parties in connection
with the execution of the Underwriting Agreement. The representations and warranties may have been made for the purposes of allocating
contractual risk between the parties to the Underwriting Agreement instead of establishing these matters as facts, and may be
subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors
should review that document as well as the registration statement, preliminary prospectus supplement and final prospectus supplement
for a complete understanding of the terms and conditions of the Offering.
This
Current Report contains forward-looking statements that involve risk and uncertainties, such as statements related to the anticipated
closing of the Offering and the amount of net proceeds expected from the Offering. The risks and uncertainties involved include
the Company’s ability to satisfy certain conditions to closing on a timely basis or at all, as well as other risks detailed
from time to time in the Company’s filings with the U.S. Securities and Exchange Commission.
The
foregoing description of the terms of the Underwriting Agreement does not purport to be complete and is qualified in its entirety
by reference to the Underwriting Agreement, which is filed as Exhibit 1.1 hereto and is incorporated herein by reference. A copy
of the opinion of Sichenzia Friedman Ross Ference LLP related to the legality of the issuance and sale of the shares in the Offering
is attached as Exhibit 5.1 hereto.