As filed with the Securities and Exchange Commission on March 6, 2023

Registration No. 333-_____

 

 

AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 2, 2021

REGISTRATION NO. 333-__________

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORMForm S-3

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

VUZIX CORPORATION

(Exact name of registrant as specified in its charter)

 

Delaware

(State or other jurisdiction of

incorporation or organization)

04-3392453

I.R.S. Employer Identification Number

Delaware04-3392453
(State of incorporation)(IRS Employer Identification No.)

  

25 Hendrix Road, Suite A

West Henrietta, New York 14586

585-359-5900(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(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 LLP

1185 Avenue of the Americas, 37th31st Floor

New York, New York 10036

Phone: 212-930-9700

Fax: 212-930-9725(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 plants,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.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.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.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.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”,filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

¨Large accelerated filer
¨¨Accelerated filer¨
xNon-accelerated filer
xxSmaller reporting companyx
¨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 Securitiesthe Exchange Act. ¨

 

CALCULATION OF REGISTRATION FEE 

        Proposed    
     Proposed  maximum    
  Amount  maximum  aggregate  Amount of 
Title of each class of to be  offering price  offering  registration 
Securities to be registered registered(1)  per unit  price (2)  fee(3) 
Common stock, par value $0.001 per share  —   —   —   — 
Preferred stock, par value $0.001 per share  —   —   —   — 
Warrants(4)  —   —   —   — 
Units(5)  —   —   —   — 
Total         $300,000,000  $32,730 

(1)There are being registered hereunder such indeterminate number of shares of common stock, preferred stock, and warrants to purchase common stock or preferred stock, as shall have an aggregate initial offering price not to exceed $300,000,000. The securities registered also include such indeterminate amounts and numbers of common stock and preferred stock as may be issued upon conversion of or exchange for preferred stock that provide for conversion or exchange, upon exercise of warrants, or pursuant to the anti-dilution provisions of any such securities.
(2)In no event will the aggregate offering price of all securities issued from time to time pursuant to this registration statement exceed $300,000,000.
(3)Calculated pursuant to Rule 457(o) under the Securities Act. The total amount is being paid herewith.
(4)Includes any warrants to purchase common stock and any warrants to purchase preferred stock.
(5)Any of the securities registered hereunder may be sold separately, or as units with other securities registered hereby. We will determine the proposed maximum offering price per unit when we issue the above listed securities. The proposed maximum per unit and aggregate offering prices per class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered under this registration statement and is not specified as to each class of security pursuant to General Instruction II.D of Form S-3 under the Securities Act.

The registrantRegistrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrantRegistrant 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 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 PROSPECTUSSUBJECT TO COMPLETIONDATED MARCH 6, 2023

Vuzix Corporation

2,843,754 Shares of Common Stock

Pursuant to this prospectus, isthe selling stockholders identified herein are offering on a resale basis an aggregate of 2,843,754 shares of common stock of Vuzix Corporation.

We will not completereceive any of the proceeds from the sale by the selling stockholders of the common stock.

The selling stockholders may sell or otherwise dispose of the common stock covered by this prospectus in a number of different ways and at varying prices. We provide more information about how the selling stockholders may sell or otherwise dispose of the common stock covered by this prospectus in the section entitled “Plan of Distribution” on page 9. Discounts, concessions, commissions and similar selling expenses attributable to the sale of common stock covered by this prospectus will be changed.borne by the selling stockholders. We may not sell these securities untilwill pay all expenses (other than discounts, concessions, commissions and similar selling expenses) relating to the registration statement relating to these securities that has been filedof the common stock 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 whereor the offer or sale is not permitted.SEC.

 

(Subject to Completion, Dated February 2, 2021)

PROSPECTUS

$300,000,000

Logo 

Common Stock

Preferred Stock

Warrants

Units

We may from time to time, in one or more offerings at prices and on terms that we will determine at the time of each offering, sell common stock, preferred stock, warrants, or a combination of these securities, or units, for an aggregate initial offering price of up to $300,000,000. This prospectus describes the general manner in which our securities may be offered using this prospectus. Each time we offer and sell securities, we will provide you with a prospectus supplement that will contain specific information about the terms of that offering. Any prospectus supplement may also add, update, or change information contained in this prospectus. You should carefully read this prospectus and the applicable prospectus supplement as well astogether with the documents incorporated or deemed to be incorporatedwe incorporate by reference, in this prospectus before you purchase any of the securities offered hereby.

This prospectus may not be used to offer and sell securities unless accompanied by a prospectus supplement.invest in our common stock.

 

Our common stock is currently tradedlisted on the NASDAQThe Nasdaq Capital Market under the symbol “VUZI.” On February 1, 2021,March 3, 2023, the last reported salessale price for our common stock was $11.56$4.11 per share. We will apply to list any shares of

Investing in our common stock sold by us underinvolves substantial risk. Please read “Risk Factors” beginning on page 8 of this prospectus and any prospectus supplement on the NASDAQ Capital Market. The prospectus supplement will contain information, where applicable, as to any other listing of the securities on the NASDAQ Capital Market or any other securities market or exchange covered by the prospectus supplement. 

The securities offered by this prospectus involve a high degree of risk. See “Risk Factors” beginning on page 5, in addition to Risk Factors contained in the applicable prospectus supplement.documents we incorporate by reference.

 

Neither the Securities and Exchange CommissionSEC nor any Statestate securities commission has approved or disapproved of these securities or determined ifpassed upon the accuracy or adequacy of this prospectus is truthful or complete.prospectus. Any representation to the contrary is a criminal offense.

 

We may offer the securities directly or through agents or to or through underwriters or dealers. If any agents or underwriters are involved in the saleThe date of the securities their names, and any applicable purchase price, fee, commission or discount arrangement between or among them, will be set forth, or will be calculable from the information set forth, in an accompanyingthis prospectus supplement. We can sell the securities through agents, underwriters or dealers only with delivery of a prospectus supplement describing the method and terms of the offering of such securities. See “Plan of Distribution.”is _________, 2023.

  

This prospectus is dated ___________, 2021


Table of ContentsTABLE OF CONTENTS

 

 Page
 Page
ABOUT THIS PROSPECTUS25
CAUTIONARY STATEMENTSUMMARY6
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS28
ABOUT VUZIX4
RISK FACTORS58
USE OF PROCEEDS58
DESCRIPTION OF COMMON STOCKSELLING STOCKHOLDERS58
DESCRIPTION OF PREFERRED STOCK6
DESCRIPTION OF WARRANTS7
DESCRIPTION OF UNITS8
PLAN OF DISTRIBUTION89
LEGAL MATTERS10
EXPERTS10
WHERE YOU CAN FIND MORE INFORMATION1011
INCORPORATION OF CERTAIN DOCUMENTSINFORMATION INCORPORATED BY REFERENCE11

 

You should rely only on the information contained or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with information different from that contained or incorporated by reference into this prospectus. If any person does provide you with information that differs from what is contained or incorporated by reference in this prospectus, you should not rely on it. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus. You should assume that the information contained in this prospectus or any prospectus supplement is accurate only as of the date on the front of the document and that any information contained in any document we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any prospectus supplement or any sale of a security. These documents are not an offer to sell or a solicitation of an offer to buy these securities in any circumstances under which the offer or solicitation is unlawful.


ABOUT THIS PROSPECTUS

 

This prospectus is part of a registration statement that we have filed with the SecuritiesSEC pursuant to which the selling stockholders named herein may, from time to time, offer and Exchange Commission,sell or SEC, using a “shelf” registration process. Under this shelf registration process, we may sell any combinationotherwise dispose of the securities described in this prospectus in oneshares of more offerings up to a total dollar amount of proceeds of $300,000,000. This prospectus describes the general manner in which our securities may be offeredcommon stock covered by this prospectus. Each time we sell securities, we will provide a prospectus supplementYou should not assume that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change 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 this prospectus. The prospectus supplement that contains specific information about the terms of the securities being offered maymaking your investment decision. You should also include a discussion of certain U.S. Federal income tax consequencesread and any risk factors or other special considerations applicable to those securities. To the extent that any statement that we make in a prospectus supplement is inconsistent with statements made in this prospectus or in documents incorporated by reference in this prospectus, you should rely onconsider the information in the prospectus supplement. You should carefully read both this prospectus and any prospectus supplement together with the additional information describeddocuments to which we have referred you under “Where You Can Find More Information” before buyingand “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 offering.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.

 

The termsUnless we have indicated otherwise, or the context otherwise requires, references in this prospectus to “Vuzix,” the “Company,” “we,” “our” or “us” in this prospectusand “our” refer to Vuzix Corporation and its wholly-owned subsidiary, unless the context suggests otherwise.Corporation.


 

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTSSUMMARY

 

This prospectus and the documents andsummary highlights certain information incorporated by reference in this prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These statements are based on our management’s beliefs and assumptions and on information currently available to our management. Forward-looking statements include statements concerning:

·trends in our operating expenses, including personnel costs, research and development expense, sales and marketing expense, and general and administrative expense;

·the effect of competitors and competition in our markets;

·our wearable products and their market acceptance and future potential;

·our ability to develop, timely introduce and effectively manage the introduction of new products and services or improve our existing products and services;

·expected technological advances by us or by third parties and our ability to leverage them;

·our ability to attract and retain customers;

·our ability to accurately forecast consumer demand and adequately manage inventory;

·our ability to deliver an adequate supply of product to meet demand;

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·our ability to maintain and promote our brand and expand brand awareness;

·our ability to detect, prevent, or fix defects in our products;

·our reliance on third-party suppliers, contract manufacturers and logistics providers and our limited control over such parties;

·trends in revenue, costs of revenue, and gross margin and our possible or assumed future results of operations;

·our ability to attract and retain highly skilled employees;

·the impact of foreign currency exchange rates;

·the effect of future regulations;

·

the sufficiency of our existing cash and cash equivalent balances and cash flow from operations to meet our working capital and capital expenditure needs for at least the next 12 months; 

·

Our ability to obtain additional financing, if needed or on acceptable terms; and

·general market, political, economic and business conditions.

All statementsappearing 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 this prospectus thatour shares, you are not historical facts are forward-looking statements. We may, in some cases, use terms such as “anticipates,” “believes,” “could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “predicts,” “projects,” “should,” “will,” “would” or similar expressions or the negativeassuming a high degree of such items that convey uncertainty of future events or outcomes to identify forward-looking statements.risk.

 

Forward-looking statements are made based on management’s beliefs, estimates and opinions on the date the statements are made and we undertake no obligation to update forward-looking statements if these beliefs, estimates and opinions or other circumstances should change, except as may be required by applicable law. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements.

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ABOUT VUZIXAbout Us—Business Overview

 

We are engaged in the design, manufacture, marketing and sale of wearable computing devices and augmented reality wearable display devices, also referred to as head mounted displays (or HMDs, but also known as HUDsHMDs), heads-up displays (HUDs) or near-eye displays),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,internet, social media or entertainment applications. Our wearable display products integrate micro-displaydisplay technology with our advanced optics to produce compact high-resolution display engines, less than half an inch diagonally, which when viewed through our smart glassesSmart Glasses products create virtual images that appear comparable in size to that of a computer monitor or a large-screen television. In 2022, we commenced a development project with Atomistic SAS relating to advanced micro light emitting diode (LED) displays with the goal to make a full-color micro LED display for Vuzix’s use in future products and in our sales to OEMs.

 

With respect to our Smart Glasses and AR products, we are focused on the enterprise, industrial, commercial, security, first responder, medical, markets, and to a lesser degree defense markets. We also provide custom solutions and engineering services to third parties, including OEMs, of waveguides to enable fully integrated wearable display systems, including head mounted displaysHMDs to commercial, industrial and defense customers. We do not offer “works for hire”“work-for-hire” services per se but rather offer our engineering services in waysfor projects that we expect could result inlead to advancing our technology or lead to aand potentially evolve into long-term supply or OEM relationship.relationships.

 

All of the mobile displaydisplays 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, over the last decade, with ever greater capabilities and performance, and, in many cases, including the rapid adoption of tablets and mobile devices with larger screen sizes and improved display resolutions as well as, in many cases, declining prices on mobile phones and other computing 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, optical systems and optical systems. ultimately micro LEDs.


About this Offering

On May 12, 2022, the Company entered into a License Agreement, Stock Purchase Agreement and a Shareholders’ Agreement (collectively, the “Original Atomistic Agreements”) with Atomistic SAS (“Atomistic”), and its two principals (the “Founders”), and on December 16, 2022, the Company entered into new License, Stock Purchase and Shareholders’ Agreements (collectively, the “New Atomistic Agreements”). These New Atomistic Agreements terminated and superseded the Original Atomistic Agreements in their entirety. Pursuant to these New Atomistic Agreements: (i) Atomistic granted to the Company an exclusive worldwide royalty-free right and license to certain technologies, (ii) the Company is required to make installment payments to Atomistic in the aggregate amount of $30,000,000, under a schedule set forth in the License Agreement, of which, $20,500,000 has already been paid, and (iii) under the Stock Purchase Agreement, the Company agreed to purchase up to an aggregate of 25,250 shares of Series B Preferred Stock of Atomistic (the “Series B Preferred Stock”) at such times following and subject to presentation of the Epitaxy Plan, the Foundation Materials and achievement of each Milestone (as defined in the Stock Purchase Agreement). The aggregate consideration the Company agreed to pay for the purchase of the Series B Preferred Stock will be $2,500,000 and between 1,750,000 and 2,843,754 shares of the Company’s common stock (valued based on the Company’s share price at the time of such issuances, subject to a floor of $8.00 and a ceiling of $13.00). The first purchase by the Company under the Stock Purchase Agreement requiring issuance of common stock, for an aggregate of 2,500 shares of Series B Preferred Stock, is expected to occur in April 2023 and the remaining shares of Series B Preferred Stock will be purchased, and corresponding issuances of common stock will be made at such times when the Foundation Materials have been presented or when each Milestone is achieved. The shares of Series B Preferred Stock will automatically convert to shares of Series A Preferred Stock of Atomistic upon being purchased by the Company. Once the Company owns at least 25,250 shares of Series A Preferred Stock of Atomistic, such shares will automatically convert into Ordinary Shares of Atomistic at a rate of 1 share of Series A Preferred Stock into 1,000 Ordinary Shares. After this automatic conversion, the Company will own 25,250,000 Ordinary Shares of Atomistic or approximately 99.9% of its total controlling shares. The Company has the option, at its sole discretion, to accelerate any Milestone to acquire all of any remaining Series B Preferred Stock at any time.

The table below sets forth the number of shares issuable by the Company to the Founders under the Stock Purchase Agreement:

 Vuzix Shares to be issued based on
ceiling price of $13		Vuzix Shares issuable based on floor
price of $8
Foundation Materials460,000747,500
Milestone 1215,000349,375
Milestone 2215,000349,375
Milestone 3107,500174,688
Milestone 4107,500174,688
Milestone 5107,500174,688
Milestone 6107,500174,688
Milestone 7107,500174,688
Milestone 8107,500174,688
Milestone 9107,500174,688
Milestone 10107,500174,688
Total Shares Issuable by the Company1,750,0002,843,754

This prospectus includes the resale of 2,843,754 shares of common stock of the Company issuable under the Stock Purchase Agreement.


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 March 1, 2023, 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 reportedundertake no obligation to publicly update any forward-looking statement, whether as a net lossresult of $14,361,100 for the nine months ended September 30, 2020, a net loss of $26,476,370 for the year ended December 31, 2019, a net loss of $21,875,713 for the year ended December 31, 2018, and a net loss of $19,663,502 for the year ended December 31, 2017. We have an accumulated deficit of $159,103,911new information, future developments or otherwise, except as of September 30, 2020.

Our principal executive offices are located at 25 Hendrix Road, West Henrietta, New York 14586. Our telephone number is (585) 359-5900. We maintain an Internet website at www.vuzix.com. The information contained on, connected tomay be required by applicable laws or that can be accessed via our website is not part of this prospectus. We have included our website address in this prospectus as an inactive textual reference only and not as an active hyperlink.regulations.

4

 

RISK FACTORS

 

InvestingAn investment in our securities involves a high degree of risk. Before making an investment decision,deciding whether to invest in our securities, you should consider carefully the risks and uncertainties and other factors describeddiscussed below, as well as those under the heading “Risk Factors” contained in our most recent Annual Report on Form 10-K for the year ended December 31, 2022as supplemented and updated by subsequent quarterly reports on Form 10-Q and current reports on Form 8-K that we have filed or will file with the SEC, whichand 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.

  

Our business, affairs, prospects, assets, financial condition, resultsRisks Relating to This Offering

The sale of operationsa substantial amount of our common stock, including resale of the shares of common stock by the selling stockholders in the public market, could adversely affect the prevailing market price of our common stock.

We are registering for resale 2,843,754 shares of common stock by the selling stockholders. 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 cash flows could be materially and adversely affected by these risks. For more information about our SEC filings, please see “Where You Can Find More Information”.when the selling stockholders may sell such shares in the public market.

  

USE OF PROCEEDS

 

Unless otherwise indicated in a prospectus supplement, we intend to useWe will not receive any of the netproceeds from any sale or other disposition of the shares of common stock covered by this prospectus. All proceeds from the sale of the securities under this prospectus for general corporate purposes, including expanding our products, and for general working capital purposes.shares will be paid directly to the selling stockholders.

 

DESCRIPTION OF COMMON STOCKSELLING STOCKHOLDERS

 

General

We are authorized to issue 100,000,000The shares of common stock $0.001 par value per share.

Holders ofbeing offered by the Company’s common stockselling stockholders include 2,843,754 shares issuable to the selling stockholders under the Purchase Agreement. We are entitled to one vote for each share on all matters submitted to a stockholder vote. Holdersregistering the shares of common stock do not have cumulative voting rights. Therefore (subjectin order to permit the rightsselling stockholders to offer the shares for resale from time to time. The selling stockholders are the “Founders” under the Purchase Agreement (see “About This Offering”) and except as set forth thereunder, none of the holdersselling stockholders have had any material relationship with us within the past three years. None of our Series A Preferred Stock, as discussed below), holdersthe selling stockholders is a broker-dealer or an affiliate of a majoritybroker-dealer.


The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock voting for the election of directors can elect all of the directors to our Board of Directors. Holders of the Company’s common stock representing one-third of the voting power of the Company’s capital stock issued, outstanding and entitled to vote, represented in person or by proxy, are necessary to constitute a quorum at any meeting of stockholders. A vote by the holdersselling stockholders. The second column lists the number of a majority of the Company’s outstanding shares is required to effectuate certain fundamental corporate changes such as a liquidation, merger or an amendment to the Company’s certificate of incorporation.

Holders of the Company’s common stock are entitled to share in all dividends that the Board of Directors, in its discretion, declares from legally available funds. In the event of a liquidation, dissolution or winding up, each outstanding share entitles its holder to participate pro rata in all assets that remain after payment of liabilities and after providing for each class of stock, if any, having preference over the common stock. The Company’s common stock has no pre-emptive rights, no conversion rights, and there are no redemption provisions applicable to the Company’s common stock.

Transfer Agent and Registrar

The transfer agent and registrar for our common stock is Computershare Trust Company.

Listing

Our common stock is currently traded on the NASDAQ Capital Market under the symbol “VUZI”.

5

DESCRIPTION OF PREFERRED STOCK

We are authorized to issue up to 5,000,000 shares of preferred stock, par value $0.001 per share, from time to time, in one or more series.

On December 30, 2014, the Company filed a Certificate of Designation of Series A Preferred Stock (the “Certificate of Designation”) with the secretary of state of the State of Delaware, pursuant to which 49,626 shares of preferred stock were designated as Series A Preferred Stock. All such 49,626 shares were issued to Intel Corporation in January 2015. On January 28, 2021, Intel elected to convert all of such shares of Series A Preferred Stock into 4,962,600 shares of common stock andbeneficially owned by the selling stockholders.

The third column lists the shares of Series A Preferred Stock have been retired and cannot be reissued. In connection with the foregoing, the Company and Vuzix entered into an agreement on the conversion date pursuant to which Intel agreed to accept $10,000,000 in full payment of all accrued Series A Preferred Stock dividends in the approximate amount of $10,800,000.

Subject to the foregoing, our Certificate of Incorporation authorizes our Board of Directors to issue preferred stock from time to time with such designations, preferences, conversion or other rights, voting powers, restrictions, dividends or limitations as to dividends or other distributions, qualifications or terms or conditions of redemption as shall be determined by the Board of Directors for each class or series of stock. Preferred stock is available for possible future financings or acquisitions and for general corporate purposes without further authorization of stockholders unless such authorization is required by applicable law, the rules of the NASDAQ Capital Market or other securities exchange or market on which our stock is then listed or admitted to trading.

Our Board of Directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes could, under some circumstances, have the effect of delaying, deferring or preventing a change-in-control of the Company.

A prospectus supplement relating to any series of preferred stock being offered will include specific terms relating toby this prospectus by the offering. Such prospectus supplement will include:selling stockholders.

Selling Stockholder Number of Shares
of Common Stock
Owned Prior to
Offering (1)		  Number of Shares
of Common Stock
Offered		  Number of
Shares of
Common Stock
Owned After
Offering (2)		  Percentage of
Common Stock
Owned After
Offering (3)		 
Jonathan Sachs  0   2,275,000   0   - 
Jerry Woodall  0   568,754   0   - 

  

 ·(1)Under applicable SEC rules, a person is deemed to beneficially own securities which the title and statedperson has the right to acquire within 60 days through the exercise of any option or par valuewarrant 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 preferred stock;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.

 

 ·(2)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 common stock 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 stockholders may sell all, some or none of such shares offered pursuant to this prospectus and may sell other shares of common stock that they may own pursuant to another registration statement under the Securities Act or sell some or all of their shares pursuant to an exemption from the registration provisions of the preferred stock offered, the liquidation preference per share and the offering price of the preferred stock;Securities Act, including under Rule 144.

 

 ·(3)the dividend rate(s), period(s) and/or payment date(s) or method(s)Based on 63,207,674 shares of calculation thereof applicable to the preferred stock;

·whether dividends shall be cumulative or non-cumulativecommon stock outstanding as of March 6, 2023, and if cumulative, the date from which dividends on the preferred stock shall accumulate;

·the provisions for a sinking fund, if any, for the preferred stock;

·any voting rightsassumes that all of the preferred stock;

·shares offered by the provisions for redemption, if applicable, of the preferred stock;

·any listing of the preferred stock on any securities exchange;

·the terms and conditions, if applicable, upon which the preferred stockselling stockholders hereunder will be convertible into our common stock, including the conversion price or the manner of calculating the conversion price and conversion period;

·if appropriate, a discussion of Federal income tax consequences applicable to the preferred stock; and

·any other specific terms, preferences, rights, limitations or restrictions of the preferred stock.

The terms, if any, on which the preferred stock may be convertible into or exchangeable for our common stock will also be stated in the preferred stock prospectus supplement. The terms will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option, and may include provisions pursuant to which the number of shares of our common stock to be received by the holders of preferred stock would be subject to adjustment.

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DESCRIPTION OF WARRANTS

 We may issue warrants for the purchase of preferred stock or common stock. Warrants may be issued independently or together with any preferred stock or common stock, and may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between a warrant agent specified in the agreement and us. The warrant agent will act solely as our agent in connection with the warrants of that series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. This summary of some provisions of the securities warrants is not complete. You should refer to the securities warrant agreement, including the forms of securities warrant certificate representing the securities warrants, relating to the specific securities warrants being offered for the complete terms of the securities warrant agreement and the securities warrants. The securities warrant agreement, together with the terms of the securities warrant certificate and securities warrants, will be filed with the SEC in connection with the offering of the specific warrants.

The applicable prospectus supplement will describe the following terms, where applicable, of the warrants in respect of which this prospectus is being delivered:

·the title of the warrants;

·the aggregate number of the warrants;

·the price or prices at which the warrants will be issued;

·the designation, amount and terms of the offered securities purchasable upon exercise of the warrants;

·if applicable, the date on and after which the warrants and the offered securities purchasable upon exercise of the warrants will be separately transferable;

·the terms of the securities purchasable upon exercise of such warrants and the procedures and conditions relating to the exercise of such warrants;

·any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants;

·the price or prices at which and currency or currencies in which the offered securities purchasable upon exercise of the warrants may be purchased;

·the date on which the right to exercise the warrants shall commence and the date on which the right shall expire;

·the minimum or maximum amount of the warrants that may be exercised at any one time;

·information with respect to book-entry procedures, if any;

·if appropriate, a discussion of Federal income tax consequences; and

·any other material terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.

Warrants for the purchase of common stock or preferred stock will be offered and exercisable for U.S. dollars only. Warrants will be issued in registered form only.

Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the purchased securities. If less than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.

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Prior to the exercise of any securities warrants to purchase preferred stock or common stock, holders of the warrants will not have any of the rights of holders of the common stock or preferred stock purchasable upon exercise, including in the case of securities warrants for the purchase of common stock or preferred stock, the right to vote or to receive any payments of dividends on the preferred stock or common stock purchasable upon exercise.

DESCRIPTION OF UNITS

As specified in the applicable prospectus supplement, we may issue units consisting of shares of common stock, shares of preferred stock or warrants or any combination of such securities.

The applicable prospectus supplement will specify the following terms of any units in respect of which this prospectus is being delivered:

·the terms of the units and of any of the common stock, preferred stock and warrants comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;

·a description of the terms of any unit agreement governing the units; and

·a description of the provisions for the payment, settlement, transfer or exchange of the units.have been sold.

  

PLAN OF DISTRIBUTION

 

We may sellThe selling stockholders of the securities offered through this prospectus (i) to or through underwriters or dealers, (ii) directly to purchasers, including our affiliates, (iii) through agents, or (iv) through a combination ofand any of these methods. Thetheir pledgees, assignees and successors-in-interest may, from time to time, sell any or all of its securities covered hereby on the Nasdaq Capital Market or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be distributed at a fixed price or prices, which may be changed, market prices prevailing at the time of sale, prices related to the prevailing market prices, or negotiated prices. The prospectus supplement will includeselling stockholders may use any one or more of the following information:methods when selling securities:

 

 ·●ordinary brokerage transactions and transactions in which the terms of the offering;broker-dealer solicits purchasers;

  

 ·●block trades in which the namesbroker-dealer will attempt to sell the securities as agent but may position and resell a portion of any underwriters or agents;the block as principal to facilitate the transaction;

 

 ·●purchases by a broker-dealer as principal and resale by the name or names of any managing underwriter or underwriters;broker-dealer for its account;

 

 ·●an exchange distribution in accordance with the purchase pricerules of the securities;applicable exchange;

 

 ·●any over-allotment options under which underwriters may purchase additional securities from us;Privately-negotiated transactions;

 

 ·●the net proceeds from the salesettlement of the securities;short sales;

 

 ·●any delayed delivery arrangements;in transactions through broker-dealers that agree with the selling stockholder to sell a specified number of such securities at a stipulated price per security;

 

 ·●any underwriting discounts, commissions andthrough the writing or settlement of options or other items constituting underwriters’ compensation;hedging transactions, whether through an options exchange or otherwise;

 

 ·●a combination of any initial public offering price;such methods of sale; or

 

 ·●any discounts or concessions allowed or reallowed or paidother method permitted pursuant to dealers;

·any commissions paid to agents; and

·any securities exchange or market on which the securities may be listed.applicable law.

 

The selling stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available, rather than under this prospectus.

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Sale Through UnderwritersBroker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or Dealersdiscounts from the selling stockholder (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2440.

 

Only underwriters named inIn connection with the prospectus supplement are underwriterssale of the securities offered byor interests therein, the prospectus supplement.

If underwriters are usedselling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the sale,course of hedging the underwriters will acquirepositions they assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities for their own account, including through underwriting, purchase, security lendingto broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or repurchase agreementsother transactions with us. The underwriters may resell the securities from time to time inbroker-dealers or other financial institutions or create one or more transactions, including negotiated transactions. Underwriters may sellderivative securities which require the securities in orderdelivery to facilitate transactions in any of oursuch broker-dealer or other securities (described in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers.

If dealers are used in the salefinancial institution of securities offered throughby this prospectus, we will sell thewhich securities such broker-dealer or other financial institution may resell pursuant to them as principals. They may then resell those securitiesthis prospectus (as supplemented or amended to the public at varying prices determined by the dealers at the time of resale. The prospectus supplement will include the names of the dealers and the terms of the transaction.reflect such transaction).

 

Direct SalesThe selling stockholders and Sales Through Agents

We may sell the securities offered through this prospectus directly. In this case, no underwritersany broker-dealers or agents would be involved. Such securities may also be sold through agents designated from time to time. The prospectus supplement will name any agentwho are involved in the offer or sale of the offered securities and will describe any commissions payable to the agent. Unless otherwise indicated in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.

We may sellselling the securities directly to institutional investors or others who may be deemed to be underwriters“underwriters” within the meaning of the Securities Act in connection with respect tosuch sales. In such event, any sale of those securities. The terms ofcommissions received by such broker-dealers or agents and any such sales will be described inprofit on the prospectus supplement.

Delayed Delivery Contracts

If the prospectus supplement indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The applicable prospectus supplement will describe the commission payable for solicitation of those contracts.

Continuous Offering Program

Without limiting the generalityresale of the foregoing, wesecurities purchased by them may enter into a continuous offering program equity distribution agreement with a broker-dealer, under which we may offer and sell shares of our common stock from timebe deemed to time through a broker-dealer as our sales agent. If we enter into such a program, sales of the shares of common stock, if any, will be made by means of ordinary brokers’ transactions on the NASDAQ Capital Market at market prices, block transactions and such other transactions as agreed upon by us and the broker-dealer. Under the terms of such a program, we also may sell shares of common stock to the broker-dealer, as principal for its own account at a price agreed upon at the time of sale. If we sell shares of common stock to such broker-dealer as principal, we will enter into a separate terms agreement with such broker-dealer, and we will describe this agreement in a separate prospectus supplementunderwriting commissions or pricing supplement.

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Market Making, Stabilization and Other Transactions

Unless the applicable prospectus supplement states otherwise, other than our common stock, all securities we offer under this prospectus will be a new issue and will have no established trading market. We may elect to list offered securities on an exchange or in the over-the-counter market. Any underwriters that we use in the sale of offered securities may make a market in such securities, but may discontinue such market making at any time without notice. Therefore, we cannot assure you that the securities will have a liquid trading market.

Any underwriter may also engage in stabilizing transactions, syndicate covering transactions and penalty bids in accordance with Rule 104discounts under the Securities Exchange Act. Stabilizing transactions involve bidsThe selling stockholders have informed the Company that they do not have any written or oral agreement or understanding, directly or indirectly, with any person to purchasedistribute the underlying security insecurities.

The Company is required to pay certain fees and expenses incurred by the open market forCompany incident to the purpose of pegging, fixing or maintaining the priceregistration of the securities. Syndicate covering transactions involve purchases ofThe Company has agreed to indemnify the securities in the open market after the distribution has been completed in order to cover syndicate short positions.

Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions. The underwriters may, if they commence these transactions, discontinue them at any time.

General Information

Agents, underwriters, and dealers may be entitled, under agreements entered into with us, to indemnification by usstockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act. Our agents, underwriters,

The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and dealers, or their affiliates,is complied with.

Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may be customers of,not simultaneously engage in transactionsmarket making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the selling stockholder or perform services for us, inany other person. We will make copies of this prospectus available to the ordinary courseselling stockholders and have informed them of business.the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).

 

LEGAL MATTERS

 

The validity of the issuanceshares of the securitiescommon stock offered byin this prospectus will behas been passed upon for us by Sichenzia Ross Ference LLP, New York, New York.

 

EXPERTS

 

The consolidated financial statements of Vuzix Corporation as of and for the years endedat December 31, 2019, 20182022 and 2017,2021 appearing in Vuzix Corporation’s our Annual Report on Form 10-K for the year ended December 31, 2019,2022, 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 consolidated 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.

 


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 annual, quarterlyreports, proxy statements and special reports, along with other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov.

 

This prospectus is partWe make available, free of a registration statementcharge, on our website at www.vuzix.com, our Annual Reports on Form S-3 that we10-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 SECSEC. The contents of our website are not part of this prospectus, and the reference to register the securities offered hereby under the Securities Act of 1933, as amended. This prospectusour website does not contain allconstitute incorporation by reference into this prospectus of the information included in the registration statement, including certain exhibits and schedules. You may obtain the registration statement and exhibits to the registration statement fromcontained on or through that site, other than documents we file with the SEC or from the SEC’s internet site.that are specifically incorporated by reference into this prospectus.

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INCORPORATION OF CERTAIN DOCUMENTSINFORMATION INCORPORATED BY REFERENCE

 

This prospectus is part of a registration statement filed with the SEC. The SEC allows us to “incorporate by reference” into this prospectus the information thatin documents we file with them,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. The following documents are incorporated by reference and made a part of this prospectus:

·our Annual Report on Form 10-K for the year ended December 31, 2019 filed with the SEC on March 16, 2020;
·our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2020 filed with the SEC on November 9, 2020;

·our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2020 filed with the SEC on August 10, 2020;

·our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020 filed with the SEC on May 11, 2020;

·our Current Reports on Form 8-K filed with the SEC on March 20, 2020, April 22, 2020, May 6, 2020, May 12, 2020, May 15, 2020 (two filings), June 24, 2020; September 9, 2020; September 10, 2020, November 16, 2020,  January 20, 2021, January 22, 2021 and January 29, 2021;

·our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 29, 2020; and

·the description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on January 26, 2015 (File No. 001-35955), including any amendment or report filed for the purpose of updating such description.

Any information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information in this prospectus supplement and the accompanying prospectus or in a later filed document that is incorporated or deemed to be incorporated herein by reference modifies or replaces such information.

We also incorporate by reference into this prospectus all documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of any offering of securities made by this prospectus. Nothing in this prospectus shall be deemed to incorporate information furnished but not filed with the SEC (including without limitation, information furnished under Item 2.02 or Item 7.01 of Form 8-K, and any exhibits relating to such information).

Any statement contained in this prospectus or in aany document incorporated or deemed to be incorporated by reference in this prospectusherein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained hereinin or in the applicableomitted 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 thesuch 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.

 

The information about us contained inWe 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 should be read together withforms a part prior to the information ineffectiveness of the documents incorporated by reference. registration statement and (ii) after the date of this prospectus until the offering of the securities is terminated:

·our Annual Report on Form 10-K for our fiscal year ended December 31, 2022, filed with the SEC on March 1, 2023; and
·the description of our common stock contained in our Registration Statement on Form 8-A, filed with the SEC on January 26, 2015.

You may request a copy of any or all of these filings, at no cost, by writing or telephoning us at: Nathaniel Bank,at the following address: Eric Black, Vuzix Corporation, 25 Hendrix Road, West Henrietta, New York 14586, telephone number 585-359-5900.

  

11

$300,000,000

Logo 

Common Stock

Preferred Stock

Warrants

Units

February , 2021

12

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 14. Other Expenses of Issuance and Distribution.

 

The following table sets forthprovides information regarding the costs andvarious expenses (other than placement agent fees) payable by the Registrantus in connection with this offering, other than underwriting commissionsthe issuance and discounts, alldistribution of whichthe securities being registered hereby. All amounts shown are estimatedestimates except for the SEC registration fee.

 

    
Item Amount 
SEC registration fee $32,730 
FINRA filing fee  45,500 
Printing and engraving expenses  10,000 
Legal fees and expenses  30,000 
Accounting fees and expenses  10,000 
Transfer agent and registrar’s fees and expenses  10,000 
Miscellaneous expenses  10,000 
     
Total $148,230 
Securities and Exchange Commission Registration Fee $1,208 
Legal Fees and Expenses  30,000 
Accounting Fees and Expenses  6,000 
Miscellaneous  5,000 
Total $42,208 

  

Item 15. Indemnification of DirectorsOfficers and Officers.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, bylaws,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 persons of ours,us pursuant to the foregoing provisions, or otherwise, we have been advisedinformed that, in the opinion of the Securities and Exchange Commission,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 usthe registrant of expenses incurred or paid by a director, officer or controlling person of oursthe 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, hereunder, 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.

 

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Item 16. Exhibits.

 

Exhibit
NumberDescription of Document
1.1Form of Underwriting Agreement.*
4.13.1 Amended and Restated Certificate of Incorporation (incorporated by reference to the Amendment No. 3 to the Registration Statement on Form S-1S-1/A filed October 16, 2009).
4.23.2 Certificate of Amended and Restated By-Laws (incorporated by reference to Form 8-K filed April 30, 2021)
3.3Amendment to Amended and Restated Certificate of Incorporation (incorporated by reference to Current Report on Form 8-K filed February 7, 2013).
4.33.4 Certificate of Amendment to Amended and Restated Certificate of Incorporation (incorporated by reference to Current Report on Form 8-K filed June 30, 2014).
4.4 Certificate of Designation of Series A Preferred Stock (incorporated by reference to Form 8-K filed January 2, 2015).
4.5Amended and Restated Bylaws (incorporated by reference to Form 8-K filed June 24, 2020).
4.6Form of Certificate of Designation.*
4.7Form of Preferred Stock Certificate.*
4.8Form of Warrant Agreement.*
4.9Form of Warrant Certificate.*
4.10Form of Stock Purchase Agreement.*
4.11Form of Unit Agreement.*
5.15.1* Opinion of Sichenzia Ross Ference LLP
23.123.1* Consent of Freed Maxick CPAs, P.C.
23.323.2* Consent of Sichenzia Ross Ference LLP (contained(included in Exhibit 5.1).
107*Calculation of Filing Fee Tables

*Filed herewith.

 

*To be filed by amendment or by a Current Report on Form 8-K and incorporated by reference herein.

Item 17. Undertakings.

 

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:Registration Statement:

 

(i) To include any prospectus required by sectionSection 10(a)(3) of the Securities Act of 1933;Act;

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statementRegistration 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.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 CommissionSEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20%20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.Registration Statement; and

14

  

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statementRegistration Statement or any material change to such information in the registration statement;Registration Statement;

 

provided, however, Paragraphs (a)that paragraphs (1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the CommissionSEC by the registrantRegistrant pursuant to sectionSection 13 or sectionSection 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement,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, of 1933, 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 of 1933 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 sectionSection 10(a) of the Securities Act of 1933 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 thatthe 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; orand

 

(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, theThe undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

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(b) The registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, of 1933, each filing of the registrant’s annual report pursuant to sectionSection 13(a) or sectionSection 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statementRegistration 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)(6) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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.

 

(d) The registrant hereby undertakes that:

(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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. 

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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 February 2, 2021.March 6, 2023.

 

 Vuzix Corporation
By:  /s/ Paul TraversVUZIX CORPORATION
      Paul Travers
Its:Chief Executive Officer
(Principal Executive Officer)
   
 By:/s/ Grant RussellPaul Travers
Paul Travers
   Grant Russell
Its:Chief Financial Officer
(Principal Financial and Accounting(Principal Executive Officer)

 

Each person whose signature appears below constitutes and appoints Paul Travers, and Grant Russell, and each of them severally, as his true and lawful attorney in factattorney-in-fact and agent, with full powerspower 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 orand all amendments (including post effectivepost-effective amendments) to the Registration Statement, and to signthis registration statement (or any other registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post effective amendments thereto,amended), and to file the same, with all exhibits thereto and allother documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, each acting alone, full power and authority to do and perform each and every act and thing requisite andor necessary to be done in and about the premises, as fullyfull to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, each acting alone, 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, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.

 

SignatureTitleDate
/s/ Paul Travers February 2, 2021Chief Executive Officer and DirectorMarch 6, 2023
Paul Travers 
Chief(Principal Executive Officer and Director (principal executive officer)Officer)  
   
/s/ Grant Russell February 2, 2021
Chief Financial Officer and Director (principal financial and accounting officer) March 6, 2023

/s/ Edward KayGrant Russell February 2, 2021
Edward Kay
Director(Principal Financial and Accounting Officer)  
   
/s/ Alexander RuckdaeschelEdward Kay February 2, 2021DirectorMarch 6, 2023
Alexander RuckdaeschelEdward Kay  
Director 
   
/s/ Timothy Harned February 2, 2021DirectorMarch 6, 2023
Timothy Harned  
/s/ Emily Nagle GreenDirectorMarch 6, 2023
Emily Nagle Green
Director
Azita Arvani
/s/ Raj RajgopalDirectorMarch 6, 2023
Raj Rajgopal  

 

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