Item 1.01. Entry into
a Material Definitive Agreement.
Public Offering
On December 1, 2022,
WiSA Technologies, Inc., a Delaware corporation (the “Company”), consummated a public offering (the “Offering”)
of an aggregate of 50,400,000 units (the “Units”) and 3,600,000 pre-funded units (the “Pre-Funded Units”) at an
effective public offering price of $0.14 per Unit, resulting in aggregate gross proceeds of approximately $7.6 million. Each Unit consists
of (i) one share (the “Shares”) of common stock, par value $0.0001 per share (“Common Stock”), (ii) one Series
A Warrant (the “Series A Warrants”), and (iii) one Series B Warrant (the “Series B Warrants” and, together with
the Series A Warrants, the “Warrants”), each such Warrant being exercisable from time to time for one Share at an exercise
price of $0.14 per share. Each Pre-Funded Unit consists of (i) one pre-funded warrant (the “Pre-Funded Warrants”), each such
Pre-Funded Warrant being exercisable from time to time for one Share, (ii) one Series A Warrant and (iii) one Series B Warrant. The Warrants
are immediately exercisable for one Share at an exercise price of $0.14 per share, and will expire five (5) years after the date of issuance.
The Pre-Funded Warrants are immediately exercisable for one Share at an exercise price of $0.001 per share, and will remain exercisable
until exercised in full.
The Share and accompanying
Warrants included in each Unit were issued separately, and the Pre-Funded Warrant and the accompanying Warrants included in each Pre-Funded
Unit were issued separately. The Units and Pre-Funded Units have no stand-alone rights and were not issued or certificated.
Subject to certain exemptions
outlined in the Warrants, if the Company sells, enters into an agreement to sell, or grants any option to purchase, or sells, enters into
an agreement to sell, or grants any right to reprice, or otherwise disposes of or issues (or announces any offer, sale, grant or any option
to purchase or other disposition) any shares of Common Stock or any other securities that are at any time convertible into, or exercisable
or exchangeable for, or otherwise entitle the holder thereof to receive, Common Stock, at an effective price per share less than the exercise
price of the Warrant then in effect, the exercise price of the Warrants will be reduced to equal the effective price per share in such
dilutive issuance. The Warrants contain a one-time reset of the exercise price to a price equal to the lesser of (i) the then exercise
price and (ii) 100% of the five-day volume weighted average prices for the five (5) trading days immediately preceding the date
that is sixty days after issuance of such Warrants. The Warrants are subject to certain call features and, in certain circumstances, may
be exercised on a cashless basis.
In connection with the
Offering, on November 29, 2022, the Company entered into a securities purchase agreement (the “Purchase Agreement”) with
certain investors. Under the Purchase Agreement, subject to certain exemptions, the Company is prohibited, until ninety (90) days after
the closing of the Offering, from issuing, entering into any agreement to issue or announcing the issuance or proposed issuance of any
shares of Common Stock or Common Stock Equivalents (as defined in the Purchase Agreement) or (ii) filing any registration statement
or amendment or supplement thereto under the Securities Act of 1933, as amended (the “Securities Act”).
Also in connection with
the Offering, on November 29, 2022, the Company entered into a placement agency agreement (the “Placement Agency Agreement”)
with Maxim Group LLC (the “Placement Agent”), pursuant to which the Placement Agent agreed to act as placement agent on a
“best efforts” basis in connection with the Offering. The Company paid the Placement Agent an aggregate fee equal to 8.0%
of the gross proceeds raised in the Offering, and a non-accountable expense allowance equal to 1.0% of such gross proceeds. The Company
reimbursed the Placement Agent $100,000 for expenses in connection with the Offering.
The Placement Agency
Agreement and the Purchase Agreement contain customary representations, warranties and agreements by the Company, customary conditions
to closing, indemnification obligations of the Company, the Placement Agent, or the Purchasers, as the case may be, other obligations
of the parties and termination provisions. In addition, pursuant to the terms of the Placement Agency Agreement, the Company and its executive
officers and directors have entered into agreements providing that the Company and each of these persons may not, without the prior written
consent of the Placement Agent, subject to certain exceptions, offer, issue, sell, transfer or otherwise dispose of the Company’s
securities for a period of ninety (90) days following the closing date of the Offering.
A registration statement
on Form S-1 (the “Registration Statement”) relating to the Offering (File No. 333-268085) was initially filed with U.S. Securities
and Exchange Commission (the “SEC”) on November 1, 2022, and was declared effective by the SEC on November 29, 2022. The Offering
was made by means of a prospectus forming a part of the effective Registration Statement.
On December 1, 2022,
the Company entered into a warrant agency agreement with the Company’s transfer agent, VStock Transfer, LLC, who is also acting
as the warrant agent for the Company, setting forth the terms and conditions of the Warrants and Pre-Funded Warrants sold in the Offering
(the “Warrant Agency Agreement”).
On December 1, 2022,
the Company also entered into voting agreements with certain investors in the Offering (the “Voting Agreements”). Pursuant
to the terms of the Voting Agreements, such investors have agreed to vote all shares of Common Stock they beneficially own on and after
December 1, 2022, including the shares of Common Stock purchased by them in the Offering, with respect to any proposals presented to the
stockholders of the Company at the Company’s next stockholders meeting. For clarity, each investor’s agreement to vote its
shares of Common Stock in accordance with the immediately preceding sentence, does not require the such investor to vote its shares for
or against any particular proposal or proposals, whether or not such proposal or proposals are recommended by the Company’s board
of directors.
The Company intends to
use a portion of the net proceeds of the Offering to partially repay the outstanding principal amount of a senior secured convertible
note issued to an institutional investor (the “August Investor”) on August 15, 2022, as amended (the “Convertible
Note”), and the remainder of the net proceeds for working capital, capital expenditures, product development, and other general
corporate purposes, including investments in sales and marketing in the United States and internationally. The Company may also use a
portion of the net proceeds for the acquisitions of businesses, products, technologies or licenses that are complementary to its business,
although the Company has no present commitments or agreements to do so. The Company has not allocated specific amounts of net proceeds
for any of these purposes; however, the Company is required pursuant to the terms of that certain securities purchase agreement, dated
August 15, 2022 (the “August Purchase Agreement”), by and between the Company and the August Investor, pursuant
to which the Convertible Note was issued, to direct at least 20% of the gross proceeds of the Offering to repay a portion of the Convertible
Note.
Waiver of Rights;
Issuance of Additional Warrants
On November 28,
2022, the Company entered into a waiver of rights (the “Waiver”) with the August Investor, pursuant to which the August Investor
agreed to waive certain prohibitions under the August Purchase Agreement with respect to the Offering in exchange for the issuance
by the Company, on the closing date of the Offering, of an additional number of Series A Warrants and an additional number of Series B
Warrants equal to the quotient obtained by dividing $750,000 by the public offering price for the Units sold in the offering (such Warrants,
the “Additional Warrants”). On December 1, 2022, the Company issued 5,357,143 Series A Warrants and 5,357,143 Series B
Warrants to the August Investor. Such Additional Warrants were issued in reliance on the exemption from registration provided by
Section 4(a)(2) of the Securities Act and/or Rule 506 of Regulation D promulgated thereunder. The Company’s obligation
to issue shares of Common Stock underlying the Additional Warrants is expressly conditioned upon stockholder approval of all of the transactions
contemplated by the August Purchase Agreement, and the transaction documents related thereto, to be included as a proposal in the
Company’s proxy statement for a special meeting scheduled to be held on January 17, 2023.
The foregoing does not
purport to be a complete description of each of the Placement Agency Agreement, the Series A Warrant, the Series B Warrant,
the Pre-Funded Warrant, the Voting Agreement, the Purchase Agreement, the Warrant Agency Agreement and the Waiver, and is qualified in
its entirety by reference to the full text of each of such document, which are filed as Exhibits 1.1, 4.1, 4.2, 4.3, 4.4, 10.1, 10.2 and
10.3, respectively, to this Current Report on Form 8-K (this “Form 8-K”) and incorporated herein by reference.