Datavault AI Inc S-1/A, filed Feb 13, 2024
Datavault AI Inc. (DVLT)
As filed with the U.S. Securities and Exchange Commission on February 13, 2024
Registration No. 333-276631
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
to
FORM S-1
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
WiSA Technologies, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 3674 | 30-1135279 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, OR 97006
(408) 627-4716
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Brett Moyer
Chief Executive Officer
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, OR 97006
(408) 627-4716
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| David E. Danovitch, Esq. Aaron M. Schleicher, Esq. Sullivan & Worcester LLP 1633 Broadway New York, NY 10019 (212) 660-3060 |
Leslie Marlow, Esq. Hank Gracin, Esq. |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. x (333-274331)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ |
| Non-accelerated filer | x | Smaller reporting company | x |
| Emerging growth company | ¨ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this “Post-Effective Amendment No. 1”) to the Registration Statement on Form S-1 (Registration No. 333-276631) of WiSA Technologies, Inc. (the “Registration Statement”) is filed pursuant to Section 462(d) of the Securities Act of 1933, as amended, solely to update Exhibit 5.1 that was previously filed with respect to such Registration Statement in order to reference an increased number of securities. This Post-Effective Amendment No. 1 does not modify any provision of Part I or Part II of the Registration Statement other than supplementing Item 16 of Part II as set forth below. The Registration Statement shall become effective upon filing with the U.S. Securities and Exchange Commission in accordance with Rule 462(d) under the Securities Act of 1933, as amended.
PART II - INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 16. Financial Statements and Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Beaverton, State of Oregon, on February 13, 2024.
| WISA TECHNOLOGIES, INC. | ||
| By: | /s/ Brett Moyer | |
| Name: Brett Moyer | ||
| Title: President and Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, the following persons in the capacities and on the dates indicated have signed this registration statement below.
| Signature | Title | Date | ||
| /s/ BRETT MOYER | Chief Executive Officer and Director (principal executive officer) |
February 13, 2024 | ||
| Brett Moyer | ||||
| /s/ * | Chief Accounting Officer (principal financial officer and principal accounting officer) |
February 13, 2024 | ||
| Gary Williams | ||||
| /s/ * | Director | February 13, 2024 | ||
| Lisa Cummins | ||||
| /s/ * | Director | February 13, 2024 | ||
| Dr. Jeffrey M. Gilbert | ||||
| /s/ * | Director | February 13, 2024 | ||
| David Howitt | ||||
| /s/ * | Director | February 13, 2024 | ||
| Helge Kristensen | ||||
| /s/ * | Director | February 13, 2024 | ||
| Sriram Peruvemba | ||||
| /s/ * | Director | February 13, 2024 | ||
| Robert Tobias | ||||
| /s/ * | Director | February 13, 2024 | ||
| Wendy Wilson |
| * By: | /s/ Brett Moyer | |
| Brett Moyer, as attorney-in-fact | ||
Exhibit 5.1
February 13, 2024
WiSA Technologies, Inc.
15268 NW Greenbrier Pkwy
Beaverton, OR 97006
Ladies and Gentlemen:
We have acted as securities counsel for WiSA Technologies, Inc., a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-1 (Registration No. 333-276631) (the “Registration Statement”) originally filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on January 19, 2024 and amended on February 5, 2024, February 8, 2024, February 9, 2024 and the date hereof, relating to the proposed public offering of: (A) 23,734,000 units (the “Units”), each Unit consisting of (i) one share of common stock of the Company, par value $0.0001 per share (the “Shares”) and (ii) one common stock purchase warrant (the “Warrants”), each such Warrant being exercisable from time to time for one Share (the “Warrant Shares”); and (B) 130,106,000 pre-funded units (the “Pre-Funded Units”), each Pre-Funded Unit consisting of (i) one pre-funded warrant (the “Pre-Funded Warrants”), each such Pre-Funded Warrant being exercisable from time to time for one Share (the “Pre-Funded Warrant Shares”) and (ii) one Warrant. The Units, Shares, Warrants, Warrant Shares, Pre-Funded Units, Pre-Funded Warrants and Pre-Funded Warrant Shares are collectively referred to herein as the “Securities”. The Securities will be sold pursuant to the Registration Statement and one or more securities purchase agreements (the “Agreements”) by and among the Company and certain accredited investors or qualified institutional buyers identified on the signature pages thereto (collectively, the “Investors”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
As counsel to the Company in connection with the proposed potential issuance and sale of the Securities, we have examined: (i) the Company’s certificate of incorporation and bylaws, both as currently in effect; (ii) certain resolutions of the board of directors of the Company relating to the sale of the Securities (the “Resolutions”); (iii) the form of Agreement; (iv) the Registration Statement; and (v) such other proceedings, documents, and records as we have deemed necessary to enable us to render this opinion. In all such examinations, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates, and instruments submitted to us as originals, and the conformity with the originals of all documents, certificates, and instruments submitted to us as copies. We have also assumed the due execution and delivery of all documents where due execution and delivery are prerequisite to the effectiveness thereof.
Our opinions expressed herein are subject to the following qualifications and exceptions: (i) the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws relating to or affecting the rights of creditors generally, including, without limitation, laws relating to fraudulent transfers or conveyances, preferences, and equitable subordination; (ii) the effect of general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law); and (iii) we render no opinion as to the effect of the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware.
Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) execution and delivery by the Company and each of the Investors of the Agreements, (ii) effectiveness of the Registration Statement, (iii) issuance of the Securities pursuant to the terms of the Agreements, and (iv) receipt by the Company of the consideration for the Securities specified in the Resolutions:
(a) The Units and Pre-Funded Units will be duly authorized for issuance and, when issued, delivered and paid for in accordance with the terms of the Agreements and in accordance with and in the manner described in the Registration Statement, the Units and Pre-Funded Units will be validly issued, fully paid and non-assessable;
(b) The Shares will be duly authorized for issuance and, when issued, delivered and paid for in accordance with the terms of the Agreements and in accordance with and in the manner described in the Registration Statement, will be validly issued, fully paid and nonassessable;
(c) The Warrants and Pre-Funded Warrants will be duly authorized for issuance and, when issued and sold in accordance with the Agreements, the Warrants and the Warrant Agency Agreement and in accordance with and in the manner described in the Registration Statement, and duly executed and delivered by the Company to the Investors against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their respective terms; and
(d) The Warrant Shares and Pre-Funded Warrant Shares will be duly authorized for issuance and, when issued and paid for and delivered by the Company and upon valid exercise of the Warrants or Pre-Funded Warrants, as applicable, and against receipt of the exercise price therefor, in accordance with the provisions of the Agreements, Warrants or Pre-Funded Warrants, as applicable, and the Warrant Agency Agreement, and in accordance with and in the manner described in the Registration Statement, will be validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection with the offer, sale, and issuance of the Securities while the Registration Statement is in effect.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Registration Statement. In giving this consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
| Very truly yours, | |
| /s/ Sullivan & Worcester LLP | |
| Sullivan & Worcester LLP |