As
filed with the Securities and Exchange Commission on July 30, 2024
Registration
Number 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Velo3D,
Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
98-1556965 |
| (State
or other jurisdiction of incorporation or organization) |
|
(I.R.S.
Employer Identification Number) |
2710
Lakeview Court
Fremont,
California 94538
(408)
610-3915
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Bradley
Kreger
Chief
Executive Officer
2710
Lakeview Court
Fremont,
California 94538
(408)
610-3915
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Megan
A. Odroniec, Esq.
John
J. Wolfel, Esq.
Foley
& Lardner LLP
100
N. Tampa Street, Suite 2700
Tampa,
FL 33602
(813)
225-4117
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
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 registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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 |
☒ |
Smaller
reporting company |
☒ |
| |
|
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. ☐
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. The selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and
is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED JULY 30, 2024
PRELIMINARY
PROSPECTUS
Velo3D,
Inc.
1,650,000
Shares of Common Stock
This
prospectus relates to the offer and sale from time to time by the selling stockholders named in this prospectus (the “Selling
Stockholders”) of up to 1,650,000 shares of our common stock, par value $0.00001 per share (our “common stock”),
issuable upon the exercise of the July 2024 Warrants (as defined below).
The
Selling Stockholders may offer, sell or distribute all or a portion of the shares of common stock hereby registered publicly or through
private transactions at prevailing market prices or at negotiated prices. We will not receive any of the proceeds from such sales of
the shares of our common stock. We will bear all costs, expenses and fees in connection with the registration of these shares of common
stock, including with regard to compliance with state securities or “blue sky” laws. The Selling Stockholders will bear all
commissions and discounts, if any, attributable to their sale of shares of our common stock. See “Plan of Distribution”
beginning on page 9 of this prospectus.
Our
common stock is listed on the New York Stock Exchange (the “NYSE”) under the symbol “VLD.” On July 29,
2024, the last reported sales price of our common stock on the NYSE was $2.89 per share.
We
are an “emerging growth company” and a “smaller reporting company” as these terms are defined under the federal
securities laws and, as such, are subject to certain reduced public company reporting requirements.
Investing
in our common stock involves risks. See the section entitled “Risk Factors” beginning on page 4 of this prospectus, the section
entitled “Risk Factors” beginning on page 19 of our Annual Report on Form 10-K for the year ended December 31, 2023, which
is incorporated by reference in this prospectus, and the section entitled “Risk Factors” beginning on page 53 of our Quarterly
Report on Form 10-Q for the quarter ended March 31, 2024, which is incorporated by reference in this prospectus, to read about factors
you should consider before buying our common stock.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”)
using the “shelf” registration process. Under this shelf registration process, the Selling Stockholders may, from time to
time, sell or otherwise distribute the shares of common stock offered by them as described in the section titled “Plan of Distribution”
in this prospectus. We will not receive any proceeds from the sale by such Selling Stockholders of the shares of common stock offered
by them described in this prospectus.
Neither
we nor the Selling Stockholders have authorized anyone to provide you with any information or to make any representations other than
those contained or incorporated by reference in this prospectus or any applicable prospectus supplement or, if permitted, any free writing
prospectuses prepared by or on behalf of us or to which we have referred you. Neither we nor the Selling Stockholders take responsibility
for, and can provide no assurance as to the reliability of, any other information that others may give you. Neither we nor the Selling
Stockholders will make an offer to sell these shares of common stock in any jurisdiction where the offer or sale is not permitted.
We
may also provide a prospectus supplement or, if required, a post-effective amendment to the registration statement to add information
to, update or change information contained or incorporated by reference in this prospectus. You should read both this prospectus and
any applicable prospectus supplement or post-effective amendment to the registration statement together with the additional information
to which we refer you in the section of this prospectus entitled “Where You Can Find More Information; Incorporation by Reference.” Information incorporated by reference after the date of this prospectus may add, update or change information contained in this
prospectus. Any information in such subsequent filings that is inconsistent with this prospectus will supersede the information in this
prospectus or any earlier prospectus supplement.
Unless
the context otherwise requires, references in this prospectus to:
| ● | “Legacy
Velo3D” refer to Velo3D, Inc., a Delaware corporation, prior to the closing of
the Merger (as defined herein); |
| ● | “Velo3D”
refer to Velo3D, Inc., a Delaware corporation (f/k/a JAWS Spitfire Acquisition Corporation, a Cayman Islands exempted company, prior
to domestication), and its consolidated subsidiaries following the closing of the Merger; and |
| ● | “we,”
“us,” and “our” or the “Company”
refer to Velo3D following the closing of the Merger and to Legacy Velo3D prior to the closing
of the Merger. |
PROSPECTUS
SUMMARY
This
summary may not contain all the information that you should consider before investing in our common stock. You should read the entire
prospectus and the information incorporated by reference in this prospectus carefully, including “Risk Factors” and the financial
statements and related notes incorporated by reference herein, before making an investment decision.
Company
Overview
We
seek to fulfill the promise of additive manufacturing (“AM”), also referred to as three-dimensional printing or 3D
printing, to deliver breakthroughs in performance, cost and lead time in the production of high-value metal parts.
We
produce a fully integrated hardware and software solution based on our proprietary laser powder bed fusion (“L-PBF”)
technology, which greatly reduces and often eliminates the need for support structures. Our technology enables the production of highly
complex, mission-critical parts that existing AM solutions cannot produce without the need for redesign or additional assembly. Our Sapphire
family of systems gives our customers who are in space, aviation, defense, automotive, energy and industrial markets the freedom to design
and produce metal parts with complex internal features and geometries that had previously been considered impossible for AM. We believe
our technology is years ahead of competitors.
Our
technology is novel compared to other AM technologies based on its ability to deliver high-value metal parts that have complex internal
channels, structures and geometries. This affords a wide breadth of design freedom for creating new metal parts and it enables replication
of existing parts without the need to redesign the part to be manufacturable with AM. Because of these features, we believe our technology
and product capabilities are highly valued by our customers. Our customers are primarily original equipment manufacturers (“OEMs”)
and contract manufacturers who look to AM to solve issues with traditional metal parts manufacturing technologies. Those traditional
manufacturing technologies rely on processes, including casting, stamping and forging, that typically require high volumes to drive competitive
costs and have long lead times for production. Our customers look to AM solutions to produce assemblies that are lighter, stronger and
more reliable than those manufactured with traditional technologies. Our customers also expect AM solutions to drive lower costs for
low-volume parts and substantially shorter lead times. However, many of our customers have found that legacy AM technologies failed to
produce the required designs for the high-value metal parts and assemblies that our customers wanted to produce with AM. As a result,
other AM solutions often require that parts be redesigned so that they can be produced and frequently incur performance losses for high-value
applications.
In
contrast, our technology can deliver complex high value metal parts with the design advantages, lower costs and faster lead times associated
with AM, and generally avoids the need to redesign the parts. As a result, our customers have increasingly adopted our technology into
their design and production processes. We believe our value is reflected in our sales patterns, as most customers purchase a single machine
to validate our technology and purchase additional systems over time as they embed our technology in their product roadmap and manufacturing
infrastructure. We consider this approach a “land and expand” strategy, oriented around a demonstration of our value proposition
followed by increasing penetration with key customers.
The
Shares of Common Stock We Are Registering
The
shares of our common stock to which this prospectus relates are issuable upon the exercise of warrants (the “July 2024 Warrants”)
to purchase up to 1,650,000 shares of common stock that were issued to the Selling Stockholders on July 1, 2024 in a private placement
in connection with an amendment to our senior secured notes due 2026 (the “Secured Notes”). The July 2024 Warrants
are currently exercisable at an exercise price of $3.00 per share and will expire on the five-year anniversary of the date on which the
registration statement of which this prospectus forms a part is declared effective by the SEC. The Selling Stockholders may exercise
the July 2024 Warrants by paying the exercise price in cash or by electing to reduce the then outstanding principal amount under the
Secured Notes by an amount equal to the quotient of (A) any or all, at the option of the Selling Stockholders, of the amount of such
aggregate exercise price divided by (B) one and twenty hundredths (1.20). The July 2024 Warrants may also be exercised on an alternative
cashless basis under certain circumstances.
In
order to permit the public offer and resale from time to time of these shares of common stock by the Selling Stockholders, on July 1,
2024, we entered into a letter agreement (the “Letter Agreement”) with the Selling Stockholders. In accordance with
the terms of the Letter Agreement, we are using this prospectus to register up to 1,650,000 shares of common stock to be sold by the
Selling Stockholders from time to time after the date of this prospectus. The Selling Stockholders might not sell any or all of the shares
of common stock offered by this prospectus.
For
additional information, see our Current Report on Form 8-K filed on July 1, 2024, which is incorporated herein by reference.
Corporate
Information
We
were incorporated on September 11, 2020 as a special purpose acquisition company and a Cayman Islands exempted company under the name
JAWS Spitfire Acquisition Corporation (“JAWS Spitfire”). On December 7, 2020, JAWS Spitfire completed its initial
public offering of units. On September 29, 2021, JAWS Spitfire consummated a merger (the “Merger”) with Legacy Velo3D
pursuant to the Business Combination Agreement, dated as of March 22, 2021, by and among JAWS Spitfire, Spitfire Merger Sub, Inc., a
Delaware corporation, and Legacy Velo3D, as amended. In connection with the Merger, JAWS Spitfire’s jurisdiction of incorporation
was changed from the Cayman Islands to the State of Delaware and JAWS Spitfire changed its name to Velo3D, Inc.
Our
address is 2710 Lakeview Court, Fremont, CA 94538. Our telephone number is (408) 610-3915. Our website address is https://www.velo3d.com.
Information contained on our website or connected thereto does not constitute part of, and is not incorporated by reference into, this
prospectus or the registration statement of which it forms a part.
The
Offering
| Issuer |
|
Velo3D,
Inc. |
| |
|
|
| Shares
of common stock offered by the Selling Stockholders |
|
Up
to 1,650,000 shares of our common stock issuable upon the exercise of the July 2024 Warrants
|
| |
|
|
| Terms
of the offering |
|
The
Selling Stockholders will determine when and how they will dispose of the shares of common stock registered under this prospectus
for resale. |
| |
|
|
| Use
of proceeds |
|
We
will not receive any proceeds from the sale of shares of common stock by the Selling Stockholders. |
| |
|
|
| NYSE
symbol |
|
Our
common stock is listed on the NYSE under the symbol “VLD.” |
| |
|
|
Risk
factors
|
|
Investing
in our shares of common stock involves a high degree of risk. Before buying any of our shares of common stock, you should carefully
read the discussion of material risks of investing in our shares of common stock. Please see the section entitled “Risk Factors”
beginning on page 4 of this prospectus, the section entitled “Risk Factors” beginning on page 19 of our Annual Report
on Form 10-K for the year ended December 31, 2023, which report is incorporated by reference in this prospectus, and the section
entitled “Risk Factors” beginning on page 53 of our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024,
which report is incorporated by reference in this prospectus. |
RISK
FACTORS
An
investment in our shares of common stock involves a high degree of risk. You should consider the risk factors discussed below, as well
as the risk factors described in the “Risk Factors” section of our Annual Report on Form 10-K for the fiscal year
ended December 31, 2023, which report is incorporated herein by reference, the risk factors described in the “Risk Factors”
section of our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, which report is incorporated herein by reference,
and the factors and other information contained in or incorporated by reference in this prospectus or in any prospectus supplement or
post-effective amendment, if required, before purchasing any of our common stock. We may face additional risks and uncertainties that
are not presently known to us, or that we currently deem immaterial, which may also impair our business or financial condition. The occurrence
of any of these risks might cause you to lose all or part of your investments in the offered securities. See “Where
You Can Find More Information; Incorporation by Reference” and “Cautionary Note Regarding
Forward-Looking Statements.”
If
we are unable to regain compliance with the NYSE’s continued listing standards, the NYSE will delist our common stock, which would
negatively affect our Company, the price of our common stock and your ability to sell our common stock.
On
December 28, 2023, we received written notice from the NYSE that we were below compliance criteria pursuant to the continued listing
standards set forth in Section 802.01C of the NYSE’s Listed Company Manual as the average closing price of our common stock was
less than $1.00 per share over a consecutive 30 trading-day period. On June 13, 2024, we effected a 1-for-35 reverse stock split of our
common stock. On June 28, 2024, the NYSE confirmed that a calculation of our average stock price for the 30 trading days ended June 28,
2024, indicated that our stock price was above the NYSE’s minimum requirement of $1.00 based on a 30 trading-day average. Accordingly,
as of June 28, 2024, we were no longer considered below the $1.00 continued listing criterion. There can be no assurance, however, that
we will be able to maintain compliance with this continued listing standard.
On
July 8, 2024, we received written notice (the “Notice”) from the NYSE that we are not in compliance with the NYSE’s
continued listing standards set forth in Section 802.01B of the NYSE’s Listed Company Manual due to the fact that our average total
market capitalization over a consecutive 30 trading-day period was less than $50 million and, at the same time, our stockholders’
equity was less than $50 million. As set forth in the Notice, as of July 5, 2024, our 30 trading-day average market capitalization was
approximately $36.6 million and our last reported stockholders’ deficit, as of March 31, 2024, was approximately ($45.5) million.
In
accordance with applicable NYSE procedures, within 45 days from receipt of the Notice, we intend to submit a plan to the NYSE advising
it of the definitive action(s) we have taken, are taking, or plan to take that would bring us into compliance with the continued listing
standards within 18 months of receipt of the Notice (the “Cure Period”). The NYSE will review our plan and, within 45 days,
make a determination as to whether we have made a reasonable demonstration of our ability to come into conformity with the listing standards
within the Cure Period. If our plan is not accepted, the NYSE will initiate suspension and delisting procedures. If the NYSE accepts
our plan, our common stock will continue to be listed and traded on the NYSE during the Cure Period, subject to our compliance with the
other continued listing standards and continued periodic review by the NYSE of our progress with respect to our plan. If we fail to comply
with our plan or do not meet the continued listing standards at the end of the Cure Period, the NYSE will initiate suspension and delisting
procedures.
There
can be no assurance that the NYSE will accept our plan, that we will be able to comply with the plan, that we will be able to regain
compliance with this continued listing standard, or that will be able to maintain compliance with the other continued listing standards
of the NYSE. A delisting of our common stock would negatively impact us by, among other things, reducing the liquidity and market price
of our common stock; reducing the number of investors willing to hold or acquire our common stock, which could negatively impact
our ability to raise equity financing; and limiting our ability to issue additional securities or obtain additional financing in
the future. In addition, delisting from the NYSE may negatively impact our reputation and, consequently, our business.
Servicing
the Notes requires a significant amount of cash, and we may not have sufficient cash flow from our business to pay our obligations under
the Notes or our other permitted indebtedness.
Our
ability to make scheduled payments of principal or to pay interest on or to refinance the Secured Notes, the up to $35.0 million of additional
senior secured convertible notes due 2026, if issued (the “Additional Secured Convertible Notes” and collectively with the
Secured Notes, the “Notes”), or our other permitted indebtedness depends on our future performance and our ability to obtain
future financing, which are subject to economic, financial, competitive and other factors, some of which are beyond our control. As of
July 1, 2024, we had outstanding $27.9 million of Secured Notes, and the terms of the Secured Notes require us to pay approximately $33.5
million (or 120% of the outstanding principal amount of the Secured Notes) to repay the full principal amount of the Secured Notes. Unless
the holders of the Secured Notes (who are also referred to herein as the Selling Stockholders) cancel such redemptions, we are required
to redeem the entire outstanding amount of the Secured Notes, plus accrued and unpaid interest, between August 1, 2024 and
April 1, 2025, with redemption payments being made on the first day of each month in varying amounts.
Further,
if we issue any Additional Secured Convertible Notes, unless the holders (who are also referred to herein as the Selling
Stockholders) agree to further modify the redemption schedule or cancel such redemption payments, the terms of such Additional
Secured Convertible Notes would require us to pay 120% of the outstanding principal amount of such Additional Secured Convertible
Notes to repay the full principal amount of such Additional Secured Convertible Notes, with quarterly redemption payments, plus
accrued and unpaid interest, beginning on the first day of the first calendar month after such Notes are issued and continuing each
quarter until maturity in August 2026.
Our
business may not generate cash flow from operations in the future sufficient to satisfy our obligations under the Notes or our other
permitted indebtedness and, in particular, we expect that we will need to engage in additional financings to fund our operations in the
near term, the terms of which may be onerous or highly dilutive. If we are unable to generate such cash flow and obtain such additional
financing, we may be required to adopt one or more alternatives, such as reducing or delaying investments or capital expenditures, selling
assets, or refinancing or restructuring our indebtedness on terms that may be unfavorable. We may not prepay the Notes without the consent
of the holders, and our ability to refinance the Notes or our other permitted indebtedness will also depend on the capital markets and
our financial condition at such time. We may not be able to engage in any of these activities or engage in these activities on desirable
terms, which could result in a default on the Notes or our other indebtedness.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain
matters discussed in this prospectus and the documents incorporated by reference in this prospectus may constitute forward-looking statements
for purposes of the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and involve known and unknown risks, uncertainties and other factors that may
cause our actual results, performance or achievements to be materially different from the future results, performance or achievements
expressed or implied by such forward-looking statements. The words “anticipate,” “believe,” “estimate,”
“may,” “expect” and similar expressions are generally intended to identify forward-looking statements. Our actual
results may differ materially from the results anticipated in these forward-looking statements due to a variety of factors, including,
without limitation, those discussed in the section entitled “Risk Factors,” and elsewhere in this prospectus and the
documents incorporated by reference herein, where such forward-looking statements appear. All written or oral forward-looking statements
attributable to us are expressly qualified in their entirety by these cautionary statements. Such forward-looking statements include,
but are not limited to, statements about:
| ● |
our
market opportunity; |
| ● |
the
ability to maintain the listing of our common stock on the NYSE, and the potential liquidity and trading of our common stock; |
| ● |
our
ability to execute our business plan, which may be affected by, among other things, competition, and our ability to grow and manage
growth profitably, maintain relationships with customers and retain our key employees; |
| ● |
changes
in applicable laws or regulations; |
| ● |
the
inability to develop and maintain effective internal control over financial reporting; |
| ● |
our
ability to service and comply with our indebtedness; |
| ● |
our
ability to raise financing in the future; |
| ● |
our
success in retaining or recruiting, or changes required in, our officers, key employees or directors; |
| ● |
the
period over which we anticipate our existing cash and cash equivalents will be sufficient to fund our operating expenses and capital
expenditure requirements and our ability to continue as a going concern; |
| ● |
the
potential for our business development efforts to maximize the potential value of our portfolio; |
| ● |
regulatory
developments in the United States and foreign countries; |
| ● |
the
impact of laws and regulations; |
| ● |
our
expectations regarding our strategic realignment and related initiatives, and our strategic business review process; |
| ● |
our
estimates regarding expenses, future revenue, capital requirements and needs for additional financing; |
| ● |
our
financial performance; |
| ● |
the
macroeconomic conditions, including economic downturns or recessions, inflation, interest rate fluctuations, supply chain shortages
and any lingering effects of the COVID-19 pandemic on the foregoing; and |
| ● |
other
factors detailed under the section entitled “Risk Factors”. |
The
forward-looking statements contained in this prospectus and the documents incorporated by reference herein reflect our views and assumptions
only as of the date of this prospectus or such document, as applicable. Except as required by law, we assume no responsibility for updating
any forward-looking statements.
We
qualify all of our forward-looking statements by these cautionary statements. In addition, with respect to all of our forward-looking
statements, we claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation
Reform Act of 1995.
USE
OF PROCEEDS
All
of the shares of common stock offered by the Selling Stockholders pursuant to this prospectus will be sold by the Selling Stockholders
for their respective accounts. We will not receive any of the proceeds from these sales.
The
Selling Stockholders will pay any underwriting discounts and commissions and expenses incurred by the Selling Stockholders for brokerage,
accounting, tax or legal services or any other expenses incurred by the Selling Stockholders in disposing of the shares of common stock.
We will bear the costs, fees and expenses incurred in effecting the registration of the shares of common stock covered by this prospectus,
including all registration and filing fees, NYSE listing fees and fees and expenses of our counsel and our independent registered public
accounting firm.
SELLING
STOCKHOLDERS
The
Selling Stockholders may offer and sell, from time to time, any or all of the shares of common stock being offered for resale by this
prospectus, which consists of up to 1,650,000 shares of common stock issuable upon the exercise of the July 2024 Warrants.
The
term “Selling Stockholders” includes the stockholders listed in the table below and their permitted affiliate transferees
who later come to hold any of the Selling Stockholders’ interest in the shares of common stock in accordance with the terms of
the Letter Agreement.
The
following tables provide, as of July 16, 2024, information regarding the beneficial ownership of our common stock of each Selling Stockholder,
the number of shares of common stock that may be sold by each Selling Stockholder under this prospectus and the number of shares of common
stock that each Selling Stockholder will beneficially own after this offering.
Because
each Selling Stockholder may dispose of all, none or some portion of their shares of common stock, if and to the extent such Selling
Stockholder exercises its July 2024 Warrant, no estimate can be given as to the number of shares of common stock that will be beneficially
owned by a Selling Stockholder upon termination of this offering. For purposes of the table below, however, we have assumed that after
termination of this offering none of the shares of common stock covered by this prospectus will be beneficially owned by the Selling
Stockholders and further assumed that the Selling Stockholders will not acquire beneficial ownership of any additional securities during
the offering. In addition, the Selling Stockholders may have sold, transferred or otherwise disposed of, or may sell, transfer or otherwise
dispose of, at any time and from time to time, our common stock in transactions exempt from the registration requirements of the Securities
Act after the date on which the information in the table is presented.
Under
the terms of the July 2024 Warrants, the Selling Stockholders may not receive any shares of our common stock otherwise deliverable upon
exercise of the July 2024 Warrants to the extent, but only to the extent, that such receipt would cause the Selling Stockholder (together
with the Selling Stockholder’s Affiliates and Attribution Parties (as such terms are defined in the July 2024 Warrants)) to become,
directly or indirectly, the beneficial owner of more than 4.99% of the shares of our common stock outstanding at such time.
We
may amend or supplement this prospectus from time to time in the future to update or change this Selling Stockholders list and the shares
of common stock that may be resold.
Please
see the section titled “Plan of Distribution” for further information regarding the Selling Stockholders’ method
of distributing these shares.
| |
|
Shares
of Common Stock |
|
| Name |
|
Number
Beneficially Owned Prior to Offering(1) |
|
|
Number
Registered for Sale Hereby |
|
|
Number
Beneficially Owned After Offering |
|
|
Percent
Owned After Offering(2) |
|
| High
Trail Investments ON LLC(3)(4) |
|
|
1,025,133 |
|
|
|
660,000 |
|
|
|
365,133 |
|
|
|
3.8 |
% |
| HB
SPV I Master Sub LLC(3)(4) |
|
|
1,537,699 |
|
|
|
990,000 |
|
|
|
547,699 |
|
|
|
5.4 |
% |
| (1) |
Figures
in this column consist of (i) shares of our common stock issuable upon exercise of the July 2024 Warrants and (ii) shares of our
common stock issuable upon exercise of the warrants previously issued to the Selling Stockholders on April 1, 2024 and December 29,
2023 (the “Prior Warrants”). |
| (2) |
The
percentage of shares to be beneficially owned after completion of the offering is calculated on the basis of 8,616,428 shares of
common stock outstanding as of July 16, 2024 and assumes (i) the issuance of all shares of common stock issuable upon the exercise
of the July 2024 Warrants held by such Selling Stockholder and the sale of all such common stock by such Selling Stockholder and
(ii) the issuance of all shares of common stock issuable upon the exercise of the Prior Warrants held by such Selling Stockholder,
in each case, without taking account of any limitation on exercise pursuant to the terms of the July 2024 Warrants and Prior Warrants,
as applicable. |
| (3) |
Hudson
Bay Capital Management LP, the investment manager of the Selling Stockholders, has voting and investment power over these securities.
Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management
LP. Each of the Selling Stockholders and Sander Gerber disclaims beneficial ownership over these securities. The address of each
Selling Stockholder is c/o Hudson Bay Capital Management LP, 28 Havemeyer Place, 2nd Floor, Greenwich, CT 06830. |
| (4) |
In
addition to the entry into the Letter Agreement and the issuance of the July 2024 Warrants pursuant thereto, we have entered into
the following transactions with the Selling Stockholders: |
| |
● |
On
August 14, 2023, pursuant to a Securities Purchase Agreement, dated August 14, 2023, as amended (the “Securities Purchase
Agreement”), with the Selling Stockholders, we issued to the Selling Stockholders $70,000,000 aggregate principal amount
of our senior secured convertible notes due 2026 (the “Initial Secured Convertible Notes”). Pursuant to the Securities
Purchase Agreement, the Selling Stockholders have the right to purchase up to an additional $35.0 million in aggregate principal
amount of our senior secured convertible notes due 2026. |
| |
● |
On
November 28, 2023, pursuant to a Securities Exchange Agreement, dated November 27, 2023, with the Selling Stockholders, (i) we made
a cash payment to the Selling Stockholders of $15.0 million to repay $12.5 million of aggregate principal amount of the Initial Secured
Convertible Notes, together with accrued and unpaid interest (which interest rate was at the Default Interest rate provided in the
Initial Secured Convertible Notes and accrued as of October 1, 2023), (ii) the remaining Initial Secured Convertible Notes were exchanged
for (A) $57.5 million aggregate principal amount of Secured Notes and (B) 10,000,000 shares of common stock, and (iii) we made a
cash payment to the Selling Stockholders of accrued and unpaid interest (which interest rate was at the Default Interest rate provided
in the Initial Secured Convertible Notes and accrued as of October 1, 2023) on the remaining Initial Secured Convertible Notes so
exchanged. |
| |
|
|
| |
● |
On
December 29, 2023, (i) pursuant to a securities purchase agreement, dated December 27, 2023, with the Selling Stockholders, we sold
the Selling Stockholders 10,000,000 shares of common stock and warrants to purchase 10,000,000 shares of common stock for an aggregate
purchase price of $5.0 million, and (ii) pursuant to a note amendment to the Secured Notes, dated December 27, 2023, with the Selling
Stockholders, we made a cash payment to the Selling Stockholders of $25.0 million to repay approximately $20.8 million of aggregate
principal amount of the Secured Notes, together with accrued and unpaid interest, and made certain amendments to the Secured Notes.
In connection with the reverse stock split effected by the Company on June 13, 2024, the number of shares issuable upon exercise
of these warrants was decreased to 285,715 shares. |
| |
|
|
| |
● |
On
April 1, 2024, pursuant to a note amendment to the Secured Notes, dated March 31, 2024, with
the Selling Stockholders, we made a cash payment of $5.5 million to the Selling Stockholders
to repay approximately $4.2 million of aggregate principal amount of the Secured Notes, together
with accrued and unpaid interest, and on April 15, 2024, we made a cash payment of $5.5 million
to the Selling Stockholders to repay approximately $4.6 million of principal of the Secured
Note, together with accrued and unpaid interest. In connection with this note amendment,
on April 1, 2024, we also entered into a letter agreement, dated as of March 31, 2024, with
the Selling Stockholders pursuant to which we issued to the Selling Stockholders warrants
to purchase 21,949,079 shares of common stock. In connection with the reverse stock split
effected by the Company on June 13, 2024, the number of shares issuable upon exercise of
these warrants was decreased to 627,117 shares.
|
| |
|
|
| |
● |
On July 1, 2024, pursuant to a note amendment to the Secured Notes, dated July 1, 2024, with the Selling Stockholders, the parties
agreed to defer the July 1, 2024 partial redemption payment of $10.5 million over a period of ten equal monthly payments commencing
August 1, 2024 in consideration for the July 2024 Warrants. |
PLAN
OF DISTRIBUTION
The
Selling Stockholders, which as used herein includes permitted affiliate transferees, pledgees or other successors-in-interest selling
shares of our common stock or interests in our common stock received after the date of this prospectus from the Selling Stockholders
as a transfer, may, from time to time, sell, transfer, distribute or otherwise dispose of certain of their shares of common stock or
interests in our common stock on any stock exchange, market or trading facility on which shares of our common stock are traded or in
private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to
the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices.
The
Selling Stockholders may use any one or more of the following methods when disposing of their shares of common stock or interests therein:
| ● |
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| ● |
block
trades (which may involve crosses) in which the broker-dealer will attempt to sell the shares of common stock as agent, but may position
and resell a portion of the block as principal to facilitate the transaction; |
| ● |
purchases
by a broker-dealer as principal and resale by the broker-dealer for its accounts; |
| ● |
an
exchange distribution and/or secondary distribution in accordance with the rules of the applicable exchange; |
| ● |
privately
negotiated transactions; |
| ● |
distributions
to their affiliates; |
| ● |
short
sales (including short sales “against the box”) effected after the date of the registration statement of which this prospectus
is a part is declared effective by the SEC; |
| ● |
through
the writing or settlement of standardized or over-the-counter options or other hedging transactions, whether through an options exchange
or otherwise; |
| ● |
in
market transactions, including transactions on a national securities exchange or quotations service or over-the-counter market; |
| ● |
by
pledge to secure debts and other obligations; |
| ● |
directly
to purchasers, including our affiliates and stockholders, in a rights offering or otherwise; |
| ● |
broker-dealers
may agree with the Selling Stockholders to sell a specified number of such shares of common stock at a stipulated price per share;
and |
| ● |
through
a combination of any of these methods or any other method permitted by applicable law. |
The
Selling Stockholders may effect the distribution of our common stock from time to time in one or more transactions either:
| ● |
at
a fixed price or prices, which may be changed from time to time; |
| ● |
at
market prices prevailing at the time of sale; |
| ● |
at
prices relating to the prevailing market prices; or |
The
Selling Stockholders may, from time to time, pledge or grant a security interest in some shares of our common stock owned by them and,
if a Selling Stockholder defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell such
shares of common stock, as applicable, from time to time, under this prospectus, or under an amendment or supplement to this prospectus
under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of the Selling Stockholders to include the
pledgee or other successors in interest as the Selling Stockholders under this prospectus.
The
Selling Stockholders may agree to indemnify a broker-dealer or agent against certain liabilities related to the sale of our common stock,
including liabilities under the Securities Act. The Selling Stockholders have advised us that they have not entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers regarding the sale of their common stock. Upon our notification
by a Selling Stockholder that any material arrangement has been entered into with a broker-dealer for the sale of common stock through
a block trade, special offering, exchange distribution, secondary distribution or a purchase by a broker-dealer, we will file a supplement
to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act, disclosing certain material information, including:
| ● |
the
name of the Selling Stockholder; |
| ● |
the
number of shares of common stock being offered; |
| ● |
the
terms of the offering; |
| ● |
the
names of the participating broker-dealers or agents; |
| ● |
any
discounts, commissions or other compensation paid to broker-dealers and any discounts, commissions or concessions allowed or reallowed
or paid by any dealers; |
| ● |
the
public offering price; |
| ● |
any
delayed delivery arrangements; and |
| ● |
other
material terms of the offering. |
In
addition, upon being notified by a Selling Stockholder that a permitted affiliate transferee, pledgee or other successor-in-interest
intends to sell common stock, we will, to the extent required, promptly file a supplement to this prospectus to name specifically such
person as a Selling Stockholder.
Agents,
broker-dealers or their affiliates may engage in transactions with, or perform services for, the Selling Stockholders (or their affiliates)
in the ordinary course of business. The Selling Stockholders may also use other third parties with whom such Selling Stockholders have
a material relationship.
The
Selling Stockholders (or their affiliates) will describe the nature of any such relationship in the applicable prospectus supplement.
There
can be no assurances that the Selling Stockholders will sell, nor are the Selling Stockholders required to sell, any or all of the common
stock offered under this prospectus.
In
connection with the sale of shares of our common stock or interests therein, the Selling Stockholders may enter into hedging transactions
with broker-dealers or other financial institutions, which may in turn engage in short sales of our common stock in the course of hedging
the positions they assume. The Selling Stockholders may also sell shares of our common stock short and deliver these securities to close
out their short positions, or loan or pledge shares of our common stock to broker-dealers that in turn may sell these securities. The
Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation
of one or more derivative securities that require the delivery to such broker-dealer or other financial institution of shares of our
common stock offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus
(as supplemented or amended to reflect such transaction).
The
aggregate proceeds to the Selling Stockholders from the sale of shares of our common stock offered by them will be the purchase price
of such shares of our common stock less discounts or commissions, if any. The Selling Stockholders reserve the right to accept and, together
with their agents from time to time, to reject, in whole or in part, any proposed purchase of shares of our common stock or warrants
to be made directly or through agents. We will not receive any of the proceeds from any offering by the Selling Stockholders.
The
Selling Stockholders also may in the future resell a portion of our common stock in open market transactions in reliance upon Rule 144
under the Securities Act, provided that they meet the criteria and conform to the requirements of that rule, or pursuant to other available
exemptions from the registration requirements of the Securities Act.
The
Selling Stockholders and any broker-dealers or agents that participate in the sale of shares of our common stock or interests therein
may be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions
or profit they earn on any resale of shares of our common stock may be underwriting discounts and commissions under the Securities Act.
If any Selling Stockholder is an “underwriter” within the meaning of Section 2(11) of the Securities Act, then such Selling
Stockholder will be subject to the prospectus delivery requirements of the Securities Act. Dealers and agents may be entitled, under
agreements entered into with the Selling Stockholders, to indemnification against and contribution toward specific civil liabilities,
including liabilities under the Securities Act.
To
the extent required, our common stock to be sold, the respective purchase prices and public offering prices, the names of any agent or
dealer, and any applicable discounts, commissions, concessions or other compensation with respect to a particular offer will be set forth
in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this
prospectus. To facilitate the offering of shares of our common stock offered by the Selling Stockholders, certain persons participating
in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of our common stock. This may include
over-allotments or short sales, which involve the sale by persons participating in the offering of more shares of common stock than were
sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open
market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of our common
stock by bidding for or purchasing shares of common stock in the open market or by imposing penalty bids, whereby selling concessions
allowed to dealers participating in the offering may be reclaimed if shares of common stock sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of our common stock
at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time. These transactions
may be effected on any exchange on which the shares of common stock are traded, in the over-the-counter market or otherwise.
Under
the Letter Agreement, we have agreed to indemnify the applicable Selling Stockholders party thereto against certain liabilities that
they may incur in connection with the sale of the shares of common stock registered hereunder, including liabilities under the Securities
Act, and to contribute to payments that the Selling Stockholders may be required to make with respect thereto. In addition, the Selling
Stockholders may agree to indemnify any broker-dealer or agent against certain liabilities related to the selling of the shares of common
stock, including liabilities arising under the Securities Act.
Under
the Letter Agreement, we have agreed to maintain the effectiveness of the registration statement of which this prospectus forms a part
pursuant to such agreement until the earliest of (i) the one year anniversary of the expiration date of the July 2024 Warrants and (ii)
with respect to any Selling Stockholder, the date on which such Holder ceases to own any Registrable Securities (as defined in the Letter
Agreement). Pursuant to the Letter Agreement, the shares of common stock issued or issuable upon the exercise of the July 2024 Warrants
will cease to be Registrable Securities upon the earliest of (A) when they are sold by a Selling Stockholder (other than a sale to an
affiliate of the Selling Stockholder), whether pursuant to an effective registration statement under the Securities Act, pursuant to
Rule 144 under the Securities Act or otherwise, (B) when they shall have ceased to be outstanding, and (C) when they may be sold pursuant
to Rule 144 under the Securities Act without restriction on the basis of volume or manner of sale limitations.
We
have agreed to pay all expenses in connection with this offering, other than selling commissions, stock transfer taxes and certain legal
expenses. Selling Stockholders may use this prospectus in connection with resales of shares of our common stock. This prospectus and
any accompanying prospectus supplement will identify the Selling Stockholders, the terms of our common stock and any material relationships
between us and the Selling Stockholders. Selling Stockholders may be deemed to be underwriters under the Securities Act in connection
with shares of our common stock they resell and any profits on the sales may be deemed to be underwriting discounts and commissions under
the Securities Act. Unless otherwise set forth in a prospectus supplement, the Selling Stockholders will receive all the net proceeds
from the resale of shares of our common stock.
A
Selling Stockholder that is an entity may elect to make an in-kind distribution of common stock to its members, partners or stockholders
pursuant to the registration statement of which this prospectus is a part by delivering a prospectus, as amended or supplemented. To
the extent that such transferees are not affiliates of ours, such transferees will receive freely tradable shares of common stock pursuant
to the distribution effected through this registration statement.
LEGAL
MATTERS
The
validity of the shares of common stock offered hereby has been passed upon for us by Foley & Lardner LLP.
EXPERTS
The
financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2023
have been so incorporated in reliance on the report (which contains an explanatory paragraph relating to the Company’s ability
to continue as a going concern as described in Note 1 to the financial statements) of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available
Information
We
file reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information
statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is http://www.sec.gov.
Our
website address is www.velo3d.com. The information on our website, however, is not, and should not be deemed to be, a part of this prospectus.
This
prospectus and any applicable prospectus supplement are part of a registration statement that we filed with the SEC and do not contain
all of the information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided
below. Statements in this prospectus or any prospectus supplement about these documents are summaries, and each statement is qualified
in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description
of the relevant matters. You may inspect a copy of the registration statement through the SEC’s website, as provided above.
Incorporation
by Reference
The
SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose
important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference
is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede
that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed
to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently
filed document incorporated by reference modifies or replaces that statement.
This
prospectus incorporates by reference the documents set forth below that have previously been filed with the SEC:
| ● |
our
Current Reports on Form 8-K filed with the SEC on January 4, 2024 (but only with respect to Item 3.01), January 30, 2024, January 31, 2024, April 2, 2024, April 11, 2024 (but only with respect to Item 1.01 and Exhibits 4.1, 4.2, 5.1, 10.1, 10.2 and 23.1 thereto),
April 22, 2024 (but only with respect to Item 5.02 and Exhibits 10.1 and 10.2 thereto), June 12, 2024 (but only with respect to Items
3.03, 5.07 and 8.01 and Exhibits 3.1, 99.1, 99.2, 99.3, 99.4, 99.5, 99.6, and 99.7 thereto), June 17, 2024 (but only with respect
to Item 5.02) as amended by the Form 8-K/A filed on July 2, 2024, July 1, 2024, and July 12, 2024 (but only with respect to Item
3.01); |
| ● |
our
Definitive Proxy Statement on Schedule 14A filed with the SEC on April 29, 2024 (but only with respect to information required by
Part III of our Annual Report on Form 10-K for the year ended December 31, 2023); and |
| ● |
the
description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on December 2, 2020, as updated
by the description of our common stock contained in Exhibit 4.6 to our Annual Report on Form 10-K for the year ended December 31,
2022, including any subsequent amendments or reports filed for the purpose of updating such description. |
All
reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination
of this offering, including all such documents we may file with the SEC after the date of filing of the initial registration statement
and prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the
SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing
of such reports and documents.
We
will provide, without charge, to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the documents incorporated by reference in this prospectus, other than exhibits
to such documents unless such exhibits are specifically incorporated by reference into such documents. Requests may be made by telephone
at 1 (408)-610-3915, or by sending a written request to Velo3D, Inc., 2710 Lakeview Court, Fremont, CA 94538, Attention: Investor Relations.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the costs and expenses payable in connection with the offering of the securities being registered, all of
which will be paid by the registrant (except any underwriting discounts and commissions and expenses incurred by the Selling Stockholders
in disposing of the securities):
| SEC registration fee | |
$ | 735.50 | |
| Legal fees and expenses* | |
| * | |
| Accounting fees and expenses* | |
| * | |
| Printer fees and Miscellaneous expenses* | |
| * | |
| Total* | |
| * | |
| * |
Estimated
fees and expenses not currently known. |
Item
15. Indemnification of Officers and Directors
Section
145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity
to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General
Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement
of expenses incurred, arising under the Securities Act of 1933, as amended (the “Securities Act”).
As
permitted by the Delaware General Corporation Law, the Registrant’s certificate of incorporation (as amended, the “Certificate
of Incorporation”), contains provisions that eliminate the personal liability of its directors and officers for monetary damages
for any breach of fiduciary duties as a director or officer, except liability for the following:
| ● |
any
breach of the director’s or officer’s duty of loyalty to the Registrant or its stockholders; |
| ● |
acts
or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
| ● |
under
Section 174 of the Delaware General Corporation Law (regarding liability of directors for unlawful dividends and stock purchases);
or |
| ● |
any
transaction from which the director or officer derived an improper personal benefit. |
In
addition, the exculpation provision of the Certificate of Incorporation would not shield officers from liability for claims brought by
or in the right of the corporation, such as derivative claims.
As
permitted by the Delaware General Corporation Law, the Registrant’s amended and restated bylaws (the “Bylaws”) provide
that:
| ● |
the
Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation
Law, subject to very limited exceptions; |
| ● |
the
Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the
fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and |
| ● |
the
rights conferred in the Bylaws are not exclusive. |
The
Registrant has entered into indemnification agreements with its directors and executive officers, which provide for indemnification and
advancements by the Registrant of certain expenses and costs under certain circumstances. At present, there is no pending litigation
or proceeding involving a director or executive officer of the Registrant for which indemnification is sought. The indemnification provisions
in the Registrant’s Certificate of Incorporation, Bylaws and the indemnification agreements entered into between the Registrant
and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors
and executive officers for liabilities arising under the Securities Act.
The
Registrant has directors’ and officers’ liability insurance for securities matters.
Item
16. Exhibits
| |
|
|
|
Incorporated
by Reference |
| Exhibit
Number |
|
Exhibit
Title |
|
Form |
|
Exhibit |
|
Filing
Date |
|
Filed
Herewith |
| 2.1 |
|
Business Combination Agreement, dated as of March 22, 2021, by and among JAWS Spitfire Acquisition Corporation, Spitfire Merger Sub, Inc., and Velo3D, Inc. |
|
8-K |
|
2.1 |
|
03/23/2021 |
|
|
| 2.2 |
|
Amendment No. 1 to the Business Combination Agreement, dated July 20, 2021, by and among JAWS Spitfire Acquisition Corporation, Spitfire Merger Sub, Inc., and Velo3D, Inc. |
|
S-4/A |
|
Annex
AA |
|
07/20/2021 |
|
|
| 3.1 |
|
Certificate of Incorporation of Velo3D, Inc. |
|
8-K |
|
3.1 |
|
10/05/2021 |
|
|
| 3.1.1 |
|
Certificate of Amendment to the Certificate of Incorporation of Velo3D, Inc. |
|
8-K |
|
3.1 |
|
06/09/2023 |
|
|
| 3.1.2 |
|
Certificate of Amendment to the Certificate of Incorporation of Velo3D, Inc. |
|
8-K |
|
3.1 |
|
06/12/2024 |
|
|
| 3.3 |
|
Amended and Restated Bylaws of Velo3D, Inc. |
|
8-K |
|
3.1 |
|
02/22/2023 |
|
|
| 4.1 |
|
Specimen Ordinary Share Certificate |
|
S-1 |
|
4.2 |
|
11/27/2020 |
|
|
| 4.2 |
|
Certificate of Corporate Domestication of JAWS Spitfire Acquisition Corporation |
|
8-K |
|
4.4 |
|
10/05/2021 |
|
|
| 5.1 |
|
Legal Opinion of Foley & Lardner LLP |
|
|
|
|
|
|
|
X |
| 23.1 |
|
Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm for Velo3D, Inc. |
|
|
|
|
|
|
|
X |
| 23.2 |
|
Consent of Foley & Lardner LLP (included as part of Exhibit 5.1) |
|
|
|
|
|
|
|
X |
| 24.1 |
|
Power of attorney (included on the signature page hereto) |
|
|
|
|
|
|
|
X |
Item
17. Undertakings
| (a) |
The
undersigned Registrant hereby undertakes: |
| (1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) |
to
include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) |
to
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Filing Fee Tables” in the effective registration statement; and |
| (iii) |
to
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; |
provided,
however, that subparagraphs (i),(ii), and (iii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
| (2) |
That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. |
| (3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering. |
| (4) |
That,
for the purpose of determining liability under the Securities Act to any purchaser: |
| (i) |
Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. |
Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior
to such effective date.
| (b) |
The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) |
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit, or proceeding)
is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement on Form S-3 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Fremont, State of California, on July 30, 2024.
| VELO3D,
INC. |
|
| |
|
|
| By: |
/s/
Bradley Kreger |
|
| |
Bradley
Kreger |
|
| |
Chief
Executive Officer |
|
| |
(Principal
Executive Officer) |
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Bradley Kreger and Hull
Xu, and each of them, as his or her true and lawful attorneys-in-fact, proxies and agents, each with full power of substitution and resubstitution
and full power to act without the other, for him or her in any and all capacities, to sign any and all amendments to this registration
statement (including post-effective amendments or any abbreviated registration statement and any amendments thereto filed pursuant to
Rule 462(b) increasing the number of securities for which registration is sought), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact, proxies and
agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith,
as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact,
proxies and agents, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-3 has been signed by the following
persons in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Bradley Kreger |
|
Chief
Executive Officer and Director
|
|
July
30, 2024 |
| Bradley
Kreger |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Hull Xu |
|
Chief
Financial Officer
|
|
July
30, 2024 |
| Hull
Xu |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Carl Bass |
|
Chairman
and Director |
|
July
30, 2024 |
| Carl
Bass |
|
|
|
|
| |
|
|
|
|
| /s/
Benyamin Buller |
|
Director |
|
July
30, 2024 |
| Benyamin
Buller |
|
|
|
|
| |
|
|
|
|
| /s/
Michael Idelchik |
|
Director |
|
July
30, 2024 |
| Michael
Idelchik |
|
|
|
|
| |
|
|
|
|
| /s/
Adrian Keppler |
|
Director |
|
July
30, 2024 |
| Adrian
Keppler |
|
|
|
|
| |
|
|
|
|
| /s/
Ellen Smith |
|
Director |
|
July
30, 2024 |
| Ellen
Smith |
|
|
|
|
| |
|
|
|
|
| /s/
Gabrielle Toledano |
|
Director |
|
July
30, 2024 |
| Gabrielle
Toledano |
|
|
|
|
| |
|
|
|
|
| /s/
Matthew Walters |
|
Director |
|
July
30, 2024 |
| Matthew
Walters |
|
|
|
|
| |
|
|
|
|
| /s/
Stefan Krause |
|
Director |
|
July
30, 2024 |
| Stefan
Krause |
|
|
|
|
EXHIBIT 5.1
 |
|
ATTORNEYS
AT LAW
One
Independent Drive, Suite 1300
Jacksonville,
FL 32202-5017
904.359.2000
TEL
904.359.8700
FAX
www.foley.com
|
July
30, 2024
Velo3D,
Inc.
2710
Lakeview Court
Fremont,
California 94538
Ladies
and Gentlemen:
We
have acted as securities counsel to Velo3D, Inc., a Delaware corporation (the “Company”), in connection with the filing
on the date hereof with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form
S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”),
relating to the registration by the Company of 1,650,000 shares (the “Shares”) of the Company’s common stock,
par value $0.00001 per share (the “Common Stock”), issuable upon exercise of certain warrants previously issued to
the selling stockholders (the “Warrants”), to be offered and sold by the selling stockholders identified in the Registration
Statement and the base prospectus (the “Base Prospectus”) contained therein.
In
connection with our representation, we have examined: (i) the Registration Statement, including the Base Prospectus contained therein,
and exhibits thereto, (ii) the Company’s Certificate of Incorporation, as amended, and Amended and Restated Bylaws, each as amended
to date, (iii) the proceedings and actions taken by the Board of Directors of the Company with respect to the Shares, (iv) the Warrants,
and (v) other documents, agreements and instruments, as we have deemed necessary as a basis for the opinions expressed below. We have
also considered such matters of law and of fact, including the examination of originals or copies, certified or otherwise identified
to our satisfaction, of such records and documents of the Company, certificates of officers, directors and representatives of the Company,
certificates of public officials, and such other documents as we have deemed appropriate as a basis for the opinions set forth below.
In our examination of the above-referenced documents, we have assumed the genuineness of all signatures, the authenticity of all documents,
certificates, and instruments submitted to us as originals, the conformity with the originals of all documents submitted to us as copies
and that all Shares will be offered and sold in compliance with applicable federal and state securities laws and in the manner stated
in the Registration Statement (including any and all post-effective amendments thereto), the Base Prospectus, and any applicable prospectus
supplement(s).
AUSTIN
Boston
CHICAGO
dallas
DENVER |
DETROIT
houston
JACKSONVILLE
LOS
ANGELES
MADISON |
MEXICO
CITY
MIAMI
MILWAUKEE
NEW
YORK
ORLANDO |
SACRAMENTO
salt
lake city
SAN
DIEGO
SAN
FRANCISCO
SILICON
VALLEY |
TALLAHASSEE
TAMPA
WASHINGTON,
D.C.
BRUSSELS
TOKYO |
July
30, 2024
Page
2
Based
upon the foregoing, we are of the opinion that the Shares, when issued and delivered by the Company upon exercise of the Warrants, in
accordance with the terms thereof, will be validly issued, fully paid and non-assessable.
We
render no opinion as to the effect of the laws of any state or jurisdiction other than the corporate law of the State of Delaware and
the federal laws of the United States. We assume no obligation to supplement this opinion letter if any applicable law changes after
the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof.
This
opinion is issued as of the date hereof, and we assume no obligation to supplement this opinion if any applicable law changes after the
date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof. This opinion is limited
to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated. We hereby consent to the
filing of this opinion letter 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 our 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/
Foley & Lardner LLP |
EXHIBIT
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby consent to the incorporation by reference in the Registration Statement on Form S-3 of Velo3D, Inc. of our report dated
April 3, 2024 relating to the financial statements, which appears in Velo3D, Inc.’s Annual Report on Form 10-K for the year ended
December 31, 2023. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/
PricewaterhouseCoopers LLP
San
Jose, California
July
30, 2024
EXHIBIT
107
Calculation
Of Filing Fee Tables
Form
S-3
(Form Type)
VELO3D,
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
| Security Class Title | |
Fee Calculation Rule | | |
Amount
Registered(1) | | |
Proposed Maximum Offering Price Per Unit(3) | | |
Maximum
Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | |
| Secondary Offering | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Common stock, par value $0.00001 per share | |
| 457 | (c) | |
| 1,650,000 | (2) | |
$ | 3.02 | | |
$ | 4,983,000.00 | | |
$ | 0.00014760 | | |
$ | 735.50 | |
| Total Offering Amounts | |
| | | |
| | | |
| | | |
$ | 4,983,000.00 | | |
$ | 0.00014760 | | |
$ | 735.50 | |
| Total Fees Previously Paid | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Total Fee Offsets | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Net Fee Due | |
| | | |
| | | |
| | | |
| | | |
| | | |
$ | 735.50 | |
(1)
Pursuant to Rule 416(a), this registration statement also covers any additional securities that may be offered or issued in
connection with any stock split, stock dividend or similar transaction.
(2)
Consists of an aggregate of 1,650,000 shares of the Registrant’s common stock issuable upon the exercise of warrants that were
issued to High Trail Investments ON LLC and an affiliated institutional investor on July 1, 2024 in a private placement in
connection with an amendment to our senior secured notes due 2026.
(3)
The proposed maximum offering price per share has been estimated solely for the purpose of calculating the registration fee. The registration
fee has been calculated in accordance with Rule 457(c) under the Securities Act based on the average high and low prices reported for
the Registrant’s common stock on July 26, 2024.
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