As filed with the Securities and Exchange Commission
on October 1, 2024
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
VUZIX CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware |
04-3392453 |
| (State of incorporation) |
(IRS Employer Identification No.) |
25 Hendrix
Road, Suite A
West Henrietta, New
York 14586
(585) 359-5900
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Paul Travers
Chief Executive Officer
25 Hendrix
Road, Suite A
West Henrietta, New
York 14586
(585) 359-5900
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Gregory Sichenzia, Esq.
Jeff Cahlon, Esq.
Sichenzia Ross Ference Carmel LLP
1185 Avenue of the Americas, 31st Floor
New York, New York 10036
(212) 930-9700
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: 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 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. (Check one):
| 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 Exchange 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 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. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. |
| PRELIMINARY PROSPECTUS |
SUBJECT TO COMPLETION |
DATED OCTOBER 1, 2024 |
Vuzix Corporation
15,384,607 Shares of Common Stock
Pursuant to this prospectus,
the selling stockholder identified herein is offering on a resale basis an aggregate of up to 15,384,607 shares of common stock of Vuzix
Corporation, including 7,692,307 outstanding shares and up to 7,692,300 shares issuable upon conversion of up to 769,230 shares of Series
B Preferred Stock issuable pursuant to a securities purchase agreement between us and the selling stockholder.
We will not receive any of
the proceeds from the sale by the selling stockholder of the common stock.
The selling stockholder
may sell or otherwise dispose of the shares covered by this prospectus in a number of different ways and at varying prices. We
provide more information about how the selling stockholder may sell or otherwise dispose of the shares covered by this prospectus in
the section entitled “Plan of Distribution” on page 8. Discounts, concessions, commissions and similar selling expenses
attributable to the sale of shares covered by this prospectus will be borne by the selling stockholder. We will pay all expenses
(other than discounts, concessions, commissions and similar selling expenses) relating to the registration of the shares with the
Securities and Exchange Commission, or the SEC.
You should carefully read
this prospectus together with the documents we incorporate by reference, before you invest in our common stock.
Our common stock is listed
on The Nasdaq Capital Market under the symbol “VUZI.” On September 30, 2024, the last reported sale price for our common stock
was $1.17 per share.
Investing in our
common stock involves substantial risk. Please read “Risk Factors” beginning on page 7 of this
prospectus and in the documents we incorporate by reference.
Neither the SEC nor any
state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus.
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 that we have filed with the SEC pursuant to which the selling stockholder named herein may, from time to time,
offer and sell or otherwise dispose of the shares of our common stock covered by this prospectus. You should not assume that the information
contained in this prospectus is accurate on any date subsequent to the date set forth on the front cover of this prospectus or that any
information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference,
even though this prospectus is delivered or shares of common stock are sold or otherwise disposed of on a later date. It is important
for you to read and consider all information contained in this prospectus, including the documents incorporated by reference therein,
in making your investment decision. You should also read and consider the information in the documents to which we have referred you under
“Where You Can Find More Information” and “Information Incorporated by Reference” in this prospectus.
We have not authorized anyone
to give any information or to make any representation to you other than those contained or incorporated by reference in this prospectus. You
must not rely upon any information or representation not contained or incorporated by reference in this prospectus. This prospectus
does not constitute an offer to sell or the solicitation of an offer to buy any of our shares of common stock other than the shares of
our common stock covered hereby, nor does this prospectus constitute an offer to sell or the solicitation of an offer to buy any securities
in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. Persons who come
into possession of this prospectus in jurisdictions outside the United States are required to inform themselves about, and to observe,
any restrictions as to the offering and the distribution of this prospectus applicable to those jurisdictions.
Unless we have indicated otherwise,
or the context otherwise requires, references in this prospectus to “Vuzix,” the “Company,” “we,”
“us” and “our” refer to Vuzix Corporation.
PROSPECTUS SUMMARY
This summary highlights certain information
appearing elsewhere in this prospectus and in the documents we incorporate by reference into this prospectus. The summary is not complete
and does not contain all of the information that you should consider before investing in our common stock. After you read this summary,
you should read and consider carefully the entire prospectus and the more detailed information and financial statements and related notes
that are incorporated by reference into this prospectus. If you invest in our shares, you are assuming a high degree of risk.
About Us—Business Overview
We are
engaged in the design, manufacture, marketing and sale of augmented reality wearable display devices also referred to as head mounted
displays (or HMDs, but also known as near-eye displays), in the form of Smart Glasses and Augmented Reality (AR) glasses. Our wearable
display devices are worn like eyeglasses or attach to a head worn mount. These devices typically include cameras, sensors, and a computer
that enable the user to view, record and interact with video and digital content, such as computer data, the Internet, social media or
entertainment applications. Our wearable display products integrate micro-display technology with our advanced optics to produce compact
high-resolution display engines, less than half an inch diagonally, which when viewed through our Smart Glasses products create virtual
images that appear comparable in size to that of a computer monitor or a large-screen television.
With respect
to our Smart Glasses and AR products, we are focused on the enterprise, defense, industrial, medical and commercial markets. All of the
mobile display and mobile electronics markets in which we compete have been subject to rapid technological change over the last decade
including the rapid adoption of tablets, larger screen sizes and display resolutions along with declining prices on mobile phones and
other computing devices, and as a result we must continue to improve our products’ performance and lower our costs. We believe our
technology, intellectual property portfolio and position in the marketplace give us a leadership position in AR and Smart Glasses products,
waveguide optics and display engine technology.
All of
the mobile displays and wearable and mobile electronics markets in which we compete, including mobile and wearable displays and electronics,
have been and continue to be subject to consistent and rapid technological change, with ever greater capabilities and performance, including
mobile devices with larger screen sizes and improved display resolutions as well as, in many cases, reductions in pricing for mobile devices.
As a result, we must continue to improve our products’ performance and lower our costs. We believe our intellectual property portfolio
gives us a leadership position in the design and manufacturing of micro-display projection engines, waveguides, mechanical packaging,
ergonomics, and optical systems.
About this Offering
On September 3, 2024, we entered into a securities purchase agreement (the “Purchase Agreement”) with Quanta Computer Inc.
(“Quanta”), for the sale by the Company to Quanta of (i) $10,000,000 of the Company’s common stock, and (ii) up to
$10,000,000 of the Company’s newly created Series B Preferred Stock.
The
first closing under the Purchase Agreement, for the sale of 7,692,307 shares of common stock at a purchase price of $1.30 per share, occurred
on September 13, 2024.
The
second closing under the Purchase Agreement, for the sale of $5,000,000 of the Company’s Series B Preferred Stock, at a purchase
price per share equal to the higher of (a) $13.00 or (b) ten times the volume-weighted average sale price of the common stock for the
thirty trading days before the date on which the conditions for the second closing are met, will occur fifteen business days after the
day on which closing conditions for such closing are met or waived, or such other date as may be agreed to between the Company and Quanta.
The second closing will be subject to, among other closing conditions, the Waveguide Plate Production Capacity Rate (as defined under
the Purchase Agreement) at the Company’s Rochester waveguide manufacturing plant being reasonably demonstrated to reach certain
production levels and yields based on a Sampled run-rate basis (as defined in the Purchase Agreement).
The
third closing under the Purchase Agreement, for the sale of $5,000,000 of the Company’s Series B Preferred Stock, at a purchase
price per share equal to the higher of (a) $13.00 or (b) ten times the volume-weighted average sale price of the common stock for the
thirty trading days before the date on which the conditions for the third closing are met, will occur fifteen business days after the
day on which closing conditions for such closing are met or waived, or such other date as may be agreed to between the Company and Quanta.
The third closing will be subject to, among other closing conditions, the Waveguide Plate Production Capacity Rate at the Company’s
Rochester waveguide manufacturing plant being reasonably demonstrated to reach certain production levels and yields based on a Sampled
run-rate basis.
The
Purchase Agreement may be terminated by either party if the second closing has not occurred by September 3, 2025 (12 months from the date
of the Purchase Agreement), or if the third closing has not occurred by March 3, 2026 (18 months from the date of the Purchase Agreement).
In
connection with the Purchase Agreement, on September 3, 2024, the Company and Quanta entered into a registration rights agreement. Pursuant
to the registration rights agreement, the Company agreed to use commercially reasonable efforts to file a registration statement with
the Securities and Exchange Commission for the resale of the shares of common stock and shares underlying the Series B Preferred Stock,
issuable under the Purchase Agreement, by October 28, 2024 (45 days from the first closing under the Purchase Agreement), and to have
such registration statement declared effective by November 12, 2024 (60 days from the first closing (or December 12, 2024 (90 days) if
the registration statement is reviewed by the SEC)).
In
connection with the Purchase Agreement, on September 3, 2024, the Company filed a certificate of designation of Series B Preferred Stock
with the Secretary of State of Delaware. Pursuant to the certificate of designation, the Company designated 800,000 shares as Series B
Preferred Stock. The Series B Preferred Stock following issuance will entitle the holders to cumulative dividends at the annual rate of
1.5% of the original issuance price, payable quarterly. Upon any liquidation of the Company, holders of Series B Preferred Stock will
be entitled to receive the original issuance price, plus any accrued dividends, prior to any payments to holders of common stock. Each
share of Series B Preferred Stock will be convertible, at the option of the holder, into ten shares of common stock, subject to adjustment
for stock splits, stock dividends, and similar transactions. If a Triggering Event (as defined in the certificate of designation) occurs,
holders may, at their option, require the Company to redeem the Series B Preferred Stock at a redemption price equal to the original issuance
price plus any accrued dividends. The Company may, at its option at any time, redeem the Series B Preferred Stock. The Series B Preferred
Stock will not entitle the holders to voting rights, except with respect to certain actions which will require the consent of the holders
of 66 2/3% of the outstanding shares of Series B Preferred Stock, or as required by law.
This
prospectus covers the resale by Quanta of up to 15,384,607 shares of common, consisting of (i) 7,692,307 shares issued under the first
closing under the Purchase Agreement, and (ii) up to 7,692,300 shares issuable upon conversion of shares of Series B Preferred Stock issuable
under the Purchase Agreement (based on up to 769,230 shares of Series B Preferred Stock issuable under the Purchase Agreement at the minimum
purchase price of $13.00 per share).
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking
statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as
amended, or the Exchange Act. Forward-looking statements give current expectations or forecasts of future events or our future financial
or operating performance. We may, in some cases, use words such as “anticipate,” “believe,” “could,”
“estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,”
“project,” “should,” “will,” “would” or the negative of those terms, and similar expressions
that convey uncertainty of future events or outcomes to identify these forward-looking statements.
These forward-looking statements
reflect our management’s beliefs and views with respect to future events, are based on estimates and assumptions as of the date
of this prospectus and are subject to risks and uncertainties, many of which are beyond our control, that could cause our actual results
to differ materially from those in these forward-looking statements. We discuss many of these risks in greater detail in this prospectus
under “Risk Factors” and in our Annual Report on Form 10-K filed with the SEC on April 15, 2024, as well as those described
in the other documents we file with the SEC. Moreover, new risks emerge from time to time. It is not possible for our management to predict
all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may
cause actual results to differ materially from those contained in any forward-looking statements we may make. Given these uncertainties,
you should not place undue reliance on these forward-looking statements.
We undertake no obligation
to publicly update any forward-looking statement, whether as a result of new information, future developments or otherwise, except as
may be required by applicable laws or regulations.
RISK FACTORS
An investment in our securities
involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks and uncertainties
discussed below, as well as those under the heading “Risk Factors” contained in our annual report on Form 10-K for the year
ended December 31, 2023 as filed with the SEC, and as incorporated by reference in this prospectus, as the same may be amended, supplemented
or superseded by the risks and uncertainties described under similar headings in the other documents that are filed by us after the date
hereof and incorporated by reference into this prospectus.
Risks Relating to This Offering
The sale of a substantial
amount of our common stock, including resale of the shares of common stock by the selling stockholder in the public market, could adversely
affect the market price of our common stock.
We are registering for resale
up to 15,384,607 shares of common stock by the selling stockholder. Sales of substantial amounts of our common stock in the public market,
or the perception that such sales might occur, could adversely affect the market price of our common stock. We cannot predict if and when
the selling stockholder may sell such shares in the public market.
USE OF PROCEEDS
We will not receive any of
the proceeds from any sale or other disposition of the shares of common stock covered by this prospectus. All proceeds from the sale of
the shares will be paid directly to the selling stockholder.
SELLING STOCKHOLDER
We are registering 15,384,607
shares of common stock for resale by the selling stockholder, in order to permit the selling stockholder to offer the shares for resale
from time to time. Except with respect to being the investor under the Purchase Agreement (see “Prospectus Summary”), the
selling stockholder has not had any material relationship with us within the past three years. The selling stockholder is not a broker-dealer
or an affiliate of a broker-dealer.
The table below lists the
selling stockholder and other information regarding the beneficial ownership of the shares of common stock by the selling stockholder.
The second column lists the number of shares of common stock beneficially owned by the selling stockholder. The third column lists the
shares of common stock being offered by this prospectus by the selling stockholder.
| Selling Stockholder | |
Number of Shares
of Common
Stock
Owned
Prior to
Offering (2) | | |
Number of Shares
of Common
Stock
Offered(3) | | |
Number of
Shares of
Common
Stock
Owned
After
Offering (4) | | |
Percentage
of
Common
Stock
Owned
After
Offering (5) | |
| Quanta Computer Inc. (1) | |
| 7,692,307 | | |
| 15,384,607 | | |
| 0 | | |
| - | |
| (1) | The control persons of the selling stockholder are Mr. Barry
Lam and Mr. C.C. Leung. |
| | |
| (2) | Under applicable SEC rules, a person is deemed to beneficially
own securities which the person has the right to acquire within 60 days through the exercise of any option or warrant or through the
conversion of a convertible security. Also under applicable SEC rules, a person is deemed to be the “beneficial owner” of
a security with regard to which the person directly or indirectly, has or shares (a) voting power, which includes the power to vote or
direct the voting of the security, or (b) investment power, which includes the power to dispose, or direct the disposition, of the security,
in each case, irrespective of the person’s economic interest in the security. |
| (3) | Represents (i) 7,692,307 shares issued under the first closing
under the Purchase Agreement, and (ii) up to 7,692,300 shares issuable upon conversion of shares of Series B Preferred Stock issuable
under the Purchase Agreement (based on up to 769,230 shares of Series B Preferred Stock issuable under the Purchase Agreement at the
minimum purchase price of $13.00 per share). |
| | |
| (4) | Represents the number of shares that will be held by the selling
stockholder after completion of this offering based on the assumptions that (a) all shares registered for resale by the registration
statement of which this prospectus is part will be sold and (b) no other shares of common stock are acquired or sold by the selling stockholder
prior to completion of this offering. However, the selling stockholder may sell all, some or none of such shares offered pursuant to
this prospectus or sell some or all of their shares pursuant to an exemption from the registration provisions of the Securities Act,
including under Rule 144. |
| | |
| (5) | Based on 73,615,485 shares of common stock outstanding as of
September 30, 2024, and assumes that all of the shares offered by the selling stockholder hereunder will have been sold. |
PLAN OF DISTRIBUTION
The selling stockholder, including its transferees,
pledgees or donees or their respective successors, may, from time to time, sell, transfer or otherwise dispose of any or all of their
shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which the shares 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 stockholder may use any one or more
of the following methods when disposing of shares or interests therein:
| · | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| · | block trades in which the broker-dealer will attempt to sell the shares 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 account; |
| · | an exchange distribution in accordance with the rules of the applicable exchange; |
| · | privately negotiated transactions; |
| · | short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the SEC; |
| · | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| · | broker-dealers may agree with the selling stockholder to sell a specified number of such shares at a stipulated price per share; |
| · | a combination of any such methods of sale; and |
| · | any other method permitted by applicable law. |
The selling stockholder may, from time to time,
pledge or grant a security interest in some or all of the shares of common stock owned by it and, if it defaults in the performance of
its secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to time, under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act, amending
the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this
prospectus. The selling stockholder also may transfer the shares of common stock in other circumstances, in which case the transferees,
pledgees or other successors in interest will be the selling stockholders for purposes of this prospectus.
In connection with the sale of our common stock
or interests therein, the selling stockholder may enter into hedging transactions with broker-dealers or other financial institutions,
which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholder
may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the
common stock to broker-dealers that in turn may sell these securities. The selling stockholder may also enter into option or other transactions
with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to
such broker-dealer or other financial institution of shares 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 stockholder from the sale of the common stock offered by it will be the purchase price of the common stock less discounts
or commissions, if any. The selling stockholder reserves the right to accept and, together with its agents from time to time, to reject,
in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds
from this offering.
The selling stockholder also may resell all or
a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided that it meets the criteria
and conforms to the requirements of that rule, or another available exemption from the registration requirements of the Securities Act.
The selling stockholder and any underwriters,
broker-dealers or agents that participate in the sale of the common stock or interests therein may be “underwriters” within
the meaning of Section 2(a)(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the
shares may be underwriting discounts and commissions under the Securities Act. Selling stockholders who are “underwriters”
within the meaning of Section 2(a)(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities
Act.
To the extent required, the shares of our common
stock to be sold, the names of the selling stockholders, the respective purchase prices and public offering prices, the names of any agents,
dealer or underwriter, and any applicable commissions or discounts 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.
In order to comply with the securities laws of
some states, if applicable, the common stock may be sold in these jurisdictions only through registered or licensed brokers or dealers.
In addition, in some states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from
registration or qualification requirements is available and is complied with.
We have advised the selling stockholder that the
anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of shares in the market and to the activities of the
selling stockholder and its affiliates. In addition, to the extent applicable, we will make copies of this prospectus (as it may be supplemented
or amended from time to time) available to the selling stockholder for the purpose of satisfying the prospectus delivery requirements
of the Securities Act. The selling stockholder may indemnify any broker-dealer that participates in transactions involving the sale of
the shares against certain liabilities, including liabilities arising under the Securities Act.
We have agreed to indemnify the selling stockholder
against liabilities, including liabilities under the Securities Act and state securities laws, relating to the registration of the shares
offered by this prospectus.
We have agreed with the selling stockholder to
use commercially reasonable efforts to cause the registration statement of which this prospectus constitutes a part effective and to remain
continuously effective until the earlier of (1) such time as all of the shares covered by this prospectus have been disposed of pursuant
to and in accordance with such registration statement and (2) the date that all the shares covered by this prospectus cease to be “Registrable
Securities” (as defined in the registration rights agreement).
LEGAL MATTERS
The validity of the shares
of common stock offered in this prospectus has been passed upon for us by Sichenzia Ross Ference Carmel LLP, New York, New York.
EXPERTS
The consolidated financial
statements of Vuzix Corporation at December 31, 2023 and 2022 appearing in our annual report on Form 10-K for the year ended December
31, 2023, have been audited by Freed Maxick CPAs, P.C., independent registered public accountants, as set forth in its report thereon,
included therein, and which are incorporated herein by reference. Such financial statements are incorporated herein by reference in reliance
upon such report given on the authority of such firm as experts in accounting and auditing. To the extent that Freed Maxick CPAs, P.C.
audits and reports on consolidated financial statements of Vuzix Corporation at future dates and consents to the use of their reports
thereon, such consolidated financial statements also will be incorporated by reference in the registration statement in reliance upon
their reports and said authority.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC
a registration statement on Form S-3 under the Securities Act that registers the resale of the shares of our common stock covered
by this prospectus. This prospectus does not contain all of the information set forth in the registration statement and the exhibits thereto.
For further information with respect to us and our common stock, you should refer to the registration statement and the exhibits filed
as a part of the registration statement. Statements contained in or incorporated by reference into this prospectus concerning the contents
of any contract or any other document are not necessarily complete. If a contract or document has been filed as an exhibit to the registration
statement or one of our filings with the SEC that is incorporated by reference into the registration statement, we refer you to the copy
of the contract or document that has been filed. Each statement contained in or incorporated by reference into this prospectus relating
to a contract or document filed as an exhibit is qualified in all respects by the filed exhibit.
We are subject to the informational
reporting requirements of the Exchange Act. We file reports, proxy statements and other information with the SEC. Our SEC filings are
available over the Internet at the SEC’s website at http://www.sec.gov.
We make available, free of
charge, on our website at www.vuzix.com, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on
Form 8-K and amendments to those reports and statements as soon as reasonably practicable after they are filed with the SEC. The
contents of our website are not part of this prospectus, and the reference to our website does not constitute incorporation by reference
into this prospectus of the information contained on or through that site, other than documents we file with the SEC that are specifically
incorporated by reference into this prospectus.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to “incorporate
by reference” into this prospectus the information in documents we file with it, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and
information that we file later with the SEC will automatically update and supersede this information. Any statement contained in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus
to the extent that a statement contained in or omitted from this prospectus or any accompanying prospectus supplement, or in any other
subsequently filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We incorporate by reference
the documents listed below and any future documents that we file with the SEC (excluding any portion of such documents that are furnished
and not filed with the SEC) under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing
of the registration statement of which this prospectus forms a part prior to the effectiveness of the registration statement and (ii) after
the date of this prospectus until the offering of the securities is terminated:
You may request a copy of
these filings, at no cost, by writing or telephoning us at the following address: Eric Black, Vuzix Corporation, 25 Hendrix Road, West
Henrietta, New York 14586, telephone number 585-359-5900.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table provides
information regarding the various expenses (other than placement agent fees) payable by us in connection with the issuance and distribution
of the securities being registered hereby. All amounts shown are estimates except the SEC registration fee.
| Securities and Exchange Commission Registration Fee |
|
$ |
2,556 |
| Legal Fees and Expenses |
|
|
75,000 |
| Accounting Fees and Expenses |
|
|
6,000 |
| Miscellaneous |
|
|
5,000 |
| Total |
|
$ |
88,556 |
Item 15. Indemnification of Officers and Directors.
Section 145 of the Delaware General Corporation
Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses including
attorneys' fees, judgments, fines and amounts paid in settlement in connection with various actions, suits or proceedings, whether civil,
criminal, administrative or investigative other than an action by or in the right of the corporation, a derivative action, if they acted
in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable
in the case of derivative actions, except that indemnification only extends to expenses including attorneys' fees incurred in connection
with the defense or settlement of such actions, and the statute requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification
that may be granted by a corporation's certificate of incorporation, by-laws, agreement, a vote of stockholders or disinterested directors
or otherwise.
Our Amended and Restated Certificate of Incorporation
and By-Laws provide that we will indemnify and hold harmless, to the fullest extent permitted by Section 145 of the Delaware General Corporation
Law, as amended from time to time, each person that such section grants us the power to indemnify.
The Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for:
| |
· |
any breach of the director's duty of loyalty to the corporation or its stockholders; |
| |
· |
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
| |
· |
payments of unlawful dividends or unlawful stock repurchases or redemptions; or |
| |
· |
any transaction from which the director derived an improper personal benefit. |
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing
provisions, we have been informed that, in the opinion of the SEC, 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,
we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by us is against public policy as expressed hereby in the Securities Act and we will be governed
by the final adjudication of such issue.
Item 16. Exhibits.
Item 17. Undertakings.
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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table 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 paragraphs (1)(i),
(1)(ii) and (1)(iii) of this section 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 SEC by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 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:
(A) 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
(B) 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 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 the 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; and
(5) The undersigned 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 of 1934 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.
(6) 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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of West Henrietta, State of New York, on October 1, 2024.
| |
VUZIX CORPORATION |
| |
|
|
| |
By: |
/s/ Paul Travers |
| |
|
Paul Travers |
| |
|
(Principal Executive Officer) |
Each person whose signature
appears below constitutes and appoints Paul Travers, his true and lawful attorney-in-fact and agent, with full power of substitution and
re-substitution for him and in his name, place and stead, and in any and all capacities, to sign for him and in his name in the capacities
indicated below any and all amendments (including post-effective amendments) to this registration statement (or any other registration
statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933,
as amended), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite
or necessary to be done in and about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates
indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Paul Travers |
|
Chief Executive Officer and Director |
|
October 1, 2024 |
| Paul Travers |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Grant Russell |
|
Chief Financial Officer and Director |
|
October 1, 2024 |
| Grant Russell |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Edward Kay |
|
Director |
|
October 1, 2024 |
| Edward Kay |
|
|
|
|
| |
|
|
|
|
| /s/ Timothy Harned |
|
Director |
|
October 1, 2024 |
| Timothy Harned |
|
|
|
|
| |
|
|
|
|
| /s/ Paula Whitten-Doolin |
|
Director |
|
October 1, 2024 |
| Paula Whitten-Doolin |
|
|
|
|
Exhibit 5.1
October 1, 2024
Vuzix Corporation
25 Hendrix Road
West Henrietta, New York
Re: Common Stock registered under Registration
Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel
to Vuzix Corporation, a Delaware corporation (the “Company”), in connection with the Company’s registration statement
on Form S-3 filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of
1933, as amended (the “Securities Act”). The Registration Statement relates to the resale of up to 15,384,607 shares of common
stock of the Company, consisting of 7,692,307 outstanding shares (the “Outstanding Shares”) and up to 7,692,300 shares (the
“Conversion Shares,” and collectively with the Outstanding Shares, the “Shares”) issuable upon conversion of up
to 769,230 shares of Series B Preferred Stock issuable pursuant to a securities purchase agreement (the “Purchase Agreement”)
between the Company and the selling stockholder. The Shares are to be resold by the selling stockholder named in the Registration Statement,
as described in the Registration Statement.
This opinion is being delivered
in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of the following:
1. Certificate of Incorporation of the Company,
as amended;
2. Bylaws of the Company, as amended;
3. The Purchase Agreement;
4. The Registration Statement; and
5. Written consent of the Board of Directors of
the Company approving the Purchase Agreement.
We have also examined originals
or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and
receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as
we have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination, we have
assumed the genuineness of all signatures, including endorsements, the legal capacity and competency of all natural persons, the authenticity
of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic,
certified or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents,
we have assumed (i) that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform
all obligations thereunder and (ii) the due authorization by all requisite action, corporate or other, and the execution and delivery
by such parties of such documents, and the validity and binding effect thereof on such parties.
1185 AVENUE OF THE AMERICAS
| 31ST FLOOR | NEW YORK, NY | 10036
T (212) 930-9700 | F (212)
930-9725 | WWW.SRFC.LAW
The opinion expressed below
is limited to the federal securities laws of the United States of America and the Delaware General Corporation Law and we express no opinion
as to the effect on the matters covered by the laws of any other jurisdiction.
Based on the foregoing, we
are of the opinion that the Shares have been duly authorized and, (i) with respect to the Outstanding Shares, validly issued, fully paid
and non-assessable, and (ii) with respect to the Conversion Shares, when issued and sold in the manner described in the Registration Statement
and the Purchase Agreement, will be validly issued, fully paid and non-assessable.
We hereby consent to the
use of this opinion as Exhibit 5.1 to the Registration Statement, and further consent to the reference to us in the Registration Statement.
In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/ Sichenzia Ross Ference Carmel LLP
Sichenzia Ross Ference Carmel LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in
the Registration Statement on Form S-3 and related Prospectus of Vuzix Corporation (‘the Company’) of our report dated April
15, 2024, relating to the consolidated financial statements and the financial statement schedules appearing in the Annual Report in Form
10-K of Vuzix Corporation for the year ended December 31, 2023.
We also consent to the reference to our firm under
the caption “Experts”.
/s/ Freed Maxick CPAs, P.C.
Buffalo, New York
October 1, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-1
Vuzix Corporation
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| |
|
Security |
|
Security
Class |
|
Amount |
|
Proposed
Maximum
Aggregate
Offering
Price Per |
|
Fee Calculation |
|
Maximum
Aggregate
Offering |
|
Fee |
|
Amount of
Registration |
|
| |
|
Type |
|
Title |
|
Registered(1) |
|
Share(2) |
|
Rule |
|
Price |
|
Rate |
|
Fee |
|
| Fees to Be Paid |
|
Equity |
|
Common Stock underlying Preferred Stock Issuable to Selling Stockholder |
|
7,692,300 |
|
$1.085 |
|
457(c) |
|
$ |
8,346,146 |
|
0.0001531 |
|
$ |
1,277.80 |
|
| Fees to Be Paid |
|
Equity |
|
Common Stock issued to Selling Stockholder |
|
7,692,307 |
|
$1.085 |
|
457(c) |
|
$ |
8,346,153 |
|
0.0001531 |
|
$ |
1,277.80 |
|
| |
|
|
|
Total Offering Amounts |
|
15,384,607 |
|
$1.085 |
|
457(c) |
|
$ |
16,692,299 |
|
0.0001531 |
|
$ |
2,555.59 |
|
| |
|
|
|
Total Fees Previously Paid |
|
- |
|
|
|
|
|
|
|
|
- |
|
|
|
|
| |
|
|
|
Total Fee Offsets |
|
- |
|
|
|
|
|
|
|
|
|
|
|
- |
|
| |
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
$ |
2,555.59 |
|
| (1) | Represents shares offered by the selling stockholder. Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares of common stock being registered
hereunder include such indeterminate number of shares as may be issuable as a result of stock splits, stock dividends or similar transactions. |
| (2) | Estimated solely for the purpose of calculating the registration
fee and is based on the average of the high and low sales prices of the registrant’s common stock of $1.085 per share on September
25, 2024 as reported on The Nasdaq Capital Market, pursuant to Rule 457(c) under the Securities Act. |
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