As filed with the Securities and Exchange Commission on August 3, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Xometry, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 32-0415449 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
7529 Standish Place
Suite 200
Derwood, MD 20855
(240) 335-7914
(Address of principal executive offices, including zip code)
Nextline Manufacturing Corp. 2014 Stock Option Plan
Xometry, Inc. 2016 Equity Incentive Plan
(Full title of the plan)
Randolph Altschuler
Chief Executive Officer
Xometry, Inc.
7529 Standish Place
Suite 200
Derwood, MD 20855
(240) 335-7914
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Eric Blanchard David Peinsipp Michael R. Lincoln Derek O. Colla Cooley LLP 1299 Pennsylvania Ave. NW Suite 700 Washington, DC 20004-2400 (202) 842-7800 |
James Rallo Laurence Zuriff Kristie Scott Xometry, Inc. 7529 Standish Place Suite 200 Derwood, MD 20855 (240) 335-7914 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |||
Emerging growth company | ☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price per Share(2) |
Proposed Maximum Aggregate Offering Price(2) |
Amount of Registration Fee | ||||
Class A Common Stock, $0.000001 par value per share |
304,498(3) | $80.70 | $24,572,988.60 | $2,681.00 | ||||
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(1) | Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares of the Registrants Class A common stock that become issuable under the terms and conditions of the equity plan grants pursuant to which such shares were issued by the Registrant set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Registrants Class A common stock. |
(2) | Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h) of the Securities Act. The proposed maximum offering price per share and the proposed maximum aggregate offering price are based on the average of the high and low prices of the Registrants Class A common stock on August 2, 2021 as reported on the Nasdaq Global Select Market. |
(3) | The shares of Class A common stock that are being registered hereby are subject to certain agreements (the Market Stand-off Agreements) not to sell such shares for up to 180 days following the date of the prospectus related to the Companys initial public offering (IPO). As permitted by the underwriting agreement dated June 29, 2021 among the Company and the underwriters for the IPO, the Company has released 20% of the aggregate shares and vested options held as of July 28, 2021 by the Selling Stockholders named herein. The shares that are not released from the Market Stand-off Agreements remain subject to such Agreements. |
EXPLANATORY NOTE
This registration statement contains a reoffer prospectus prepared in accordance with Part I of Form S-3 (in accordance with Instruction C of the General Instructions to Form S-8). This reoffer prospectus may be used for reoffers and resales on a continuous or delayed basis of certain of those shares of Class A common stock (the Shares) of Xometry, Inc. (us, we or the Registrant) referred to above that constitute control securities or restricted securities, within the meaning of the Securities Act, by certain stockholders that are employees or former employees of the Registrant (the Selling Stockholders) for their own accounts. The shares of Class A common stock held by the Selling Stockholders are subject to certain agreements (the Market Stand-off Agreements) not to sell such shares for up to 180 days following the date of the prospectus related to the Companys initial public offering (IPO). As permitted by the underwriting agreement dated June 29, 2021 among the Company and the underwriters for the IPO, the Company has released 20% of the aggregate shares and vested options held by such Selling Stockholders, as of July 28, 2021. The Shares that are not released from the Market Stand-off Agreements remain subject to such Agreements. As specified in General Instruction C of Form S-8, the amount of securities to be reoffered or resold under the reoffer prospectus by each Selling Stockholder and any other person with whom he or she is acting in concert for the purpose of selling the Registrants securities, may not exceed, during any three-month period, the amount specified in Rule 144(e) under the Securities Act.
REOFFER PROSPECTUS
XOMETRY, INC.
304,498 Shares of Class A Common Stock
This prospectus relates to 304,498 shares of Class A common stock, par value $0.000001 per share (the Shares), of Xometry, Inc., which may be offered from time to time by certain stockholders that are our employees or former employees (the Selling Stockholders) for their own accounts. We will not receive any of the proceeds from the sale of Shares by the Selling Stockholders made hereunder. The Shares were acquired by the Selling Stockholders pursuant to our 2016 Plan and our 2014 Plan (together, the Plans).
The Selling Stockholders may sell the securities described in this prospectus in a number of different ways and at varying prices, including sales in the open market, sales in negotiated transactions and sales by a combination of these methods. The Selling Stockholders may sell any, all or none of the Shares and we do not know when or in what amount the Selling Stockholders may sell their Shares hereunder following the effective date of this registration statement. The price at which any of the Shares may be sold, and the commissions, if any, paid in connection with any such sale, are unknown and may vary from transaction to transaction. The Shares may be sold at the market price of the common stock at the time of a sale, at prices relating to the market price over a period of time, or at prices negotiated with the buyers of shares. The Shares may be sold through underwriters or dealers which the Selling Stockholders may select. If underwriters or dealers are used to sell the Shares, we will name them and describe their compensation in a prospectus supplement. We provide more information about how the Selling Stockholders may sell their Shares in the section titled Plan of Distribution. The Selling Stockholders will bear all sales commissions and similar expenses. Any other expenses incurred by us in connection with the registration and offering that are not borne by the Selling Stockholders will be borne by us.
Our Class A common stock is listed on the Nasdaq Global Select Market (Nasdaq) under the symbol XMTR. On August 2, 2021, the last reported sale price of our Class A common stock was $81.35 per share.
The shares of Class A common stock held by the Selling Stockholders are subject to certain agreements (the Market Stand-off Agreements) not to sell such shares for up to 180 days following the date of the prospectus related to our initial public offering (IPO). As permitted by the underwriting agreement dated June 29, 2021 among us and the underwriters for the IPO, we have released 20% of the aggregate shares and vested options held by such Selling Stockholders, as of July 28, 2021. The Shares that are not released from the Market Stand-off Agreements remain subject to such Agreements. The amount of securities to be offered or resold under this reoffer prospectus by each Selling Stockholder or other person with whom he or she is acting in concert for the purpose of selling our securities, may not exceed, during any three month period, the amount specified in Rule 144(e) under the Securities Act.
We are an emerging growth company as defined under the federal securities laws, and as such, we have elected to comply with certain reduced public company reporting requirements for this prospectus and may elect to do so in future filings.
Investing in our securities involves a high degree of risk. Before buying any securities, you should carefully read the discussion of the risks of investing in our securities in Risk Factors beginning on page 2 of this prospectus.
The Securities and Exchange Commission (the SEC) may take the view that, under certain circumstances, the Selling Stockholders and any broker-dealers or agents that participate with the Selling Stockholders in the distribution of the Shares may be deemed to be underwriters within the meaning of the Securities Act. Commissions, discounts or concessions received by any such broker-dealer or agent may be deemed to be underwriting commissions under the Securities Act. See the section titled Plan of Distribution.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is August 3, 2021
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You should rely only on the information contained in this prospectus or in any accompanying prospectus supplement by us or on our behalf. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume the information appearing in this prospectus is accurate only as of the date on the front cover of this prospectus, regardless of the time of delivery of this prospectus or of any sale of the Shares. Our business, financial condition, results of operations and prospects may have changed since that date.
Xometry®, the Xometry logo, and our other registered and common law trade names, trademarks and service marks are the property of Xometry, Inc. or our subsidiaries. All other trademarks, trade names and service marks appearing in this prospectus are the property of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus may be referred to without the ® and symbols, but such references should not be construed as any indicator that their respective owners will not assert their rights thereto.
Unless the context otherwise requires, all references in this prospectus to we, us, our, our company, XMTR, or similar terms refer to Xometry, Inc. and its subsidiaries.
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Xometry, Inc.
We are a leading AI-enabled marketplace for on-demand manufacturing, transforming one of the largest industries in the world. We use our proprietary technology to create a marketplace that enables buyers to efficiently source on-demand manufactured parts and assemblies, and empowers sellers of manufacturing services to grow their businesses.
Corporate Information
We were incorporated in 2013 under the name NextLine Manufacturing Corp. We changed our name to Xometry, Inc. on June 29, 2015. Our principal executive offices are located at 7529 Standish Place, Suite 200, Derwood, MD 20855, and our telephone number is (240) 335-7914. Our website address is www.xometry.com. Information contained on, or that can be accessed through, our website is not incorporated by reference into this prospectus and is an inactive textual reference only, and you should not consider information on our website to be part of this prospectus or in deciding whether or not to purchase our Class A common stock.
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An investment in shares of our Class A common stock is highly speculative and involves a high degree of risk. We face a variety of risks that may affect our operations or financial results and many of those risks are driven by factors that we cannot control or predict. Before investing in our Class A common stock, you should carefully consider the risks set forth under the caption Risk Factors in our final prospectus filed with the Securities and Exchange Commission on June 29, 2021 pursuant to Rule 424(b)(4), which are incorporated by reference herein, and subsequent reports filed with the SEC, together with the financial and other information contained or incorporated by reference in this prospectus. If any of these risks actually occurs, our business, prospects, financial condition and results of operations could be materially adversely affected. In that case, the trading price of our Class A common stock would likely decline and you may lose all or a part of your investment. Only those investors who can bear the risk of loss of their entire investment should invest in our Class A common stock.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein contain forward-looking statements (within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act and the Private Securities Litigation Reform Act of 1995) about us and our industry that involve substantial risks and uncertainties. All statements other than statements of historical facts contained or incorporated by reference in this prospectus, including statements regarding our future results of operations or financial condition, business strategy and plans and objectives of management for future operations, are forward-looking statements. In some cases, you can identify forward-looking statements because they contain words such as anticipate, believe, contemplate, continue, could, estimate, expect, intend, may, plan, potential, predict, project, should, target, will or would or the negative of these words or other similar terms or expressions. These forward-looking statements include, but are not limited to, statements concerning the following:
| our expectations regarding our revenue, expenses and other operating results; |
| the anticipated growth of our business, including the anticipated growth of revenue from seller services, our ability to effectively manage or sustain our growth and to achieve or sustain profitability; |
| the effects of COVID-19 and the associated global economic uncertainty or other public health crises; |
| future investments in our business, our anticipated capital expenditures and our estimates regarding our capital requirements; |
| our ability to attract new buyers and sellers and successfully engage new and existing buyers and sellers; |
| the costs and success of our sales and marketing efforts, and our ability to promote our brand; |
| our reliance on key personnel and our ability to identify, recruit and retain skilled personnel; |
| our ability to effectively manage our growth, including any international expansion; |
| our ability to obtain, maintain, protect and enforce our intellectual property or other proprietary rights and any costs associated therewith; |
| our ability to compete effectively with existing competitors and new market entrants; and |
| the growth rates of the markets in which we compete. |
You should not rely on forward-looking statements as predictions of future events. We have based the forward-looking statements contained in this prospectus and the documents incorporated by reference herein primarily on our current expectations and projections about future events and trends that we believe may affect our business, financial condition and operating results. The outcome of the events described in these forward-looking statements is subject to risks, uncertainties and other factors described in the section titled Risk Factors and elsewhere in this prospectus and the documents incorporated by reference herein. Moreover, we operate in a very competitive and rapidly changing environment. New risks and uncertainties emerge from time to time, and it is not possible for us to predict all risks and uncertainties that could have an impact on the forward-looking statements contained or incorporated by reference in this prospectus. The results, events and circumstances reflected in the forward-looking statements may not be achieved or occur, and actual results, events or circumstances could differ materially from those described in the forward-looking statements.
In addition, statements that we believe and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based on information available to us as of the date of this prospectus. And while we believe that information provides a reasonable basis for these statements, that information may be limited or incomplete. Our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all relevant information. These statements are inherently uncertain, and investors are cautioned not to unduly rely on these statements.
The forward-looking statements made or incorporated by reference in this prospectus relate only to events as of the date on which the statements are made. We undertake no obligation to update any forward-looking statements made in this prospectus or incorporated by reference to reflect events or circumstances after the date of this prospectus or to reflect new information or the occurrence of unanticipated events, except as required by law. We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments.
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The following table sets forth information regarding beneficial ownership of our common stock as of July 29, 2021, as adjusted to reflect the Shares that may be sold from time to time pursuant to this prospectus, for all Selling Stockholders, consisting of the individuals shown as having shares listed in the column entitled Shares Being Offered.
The Shares being registered by this prospectus consist of an aggregate of 304,498 outstanding Shares acquired by certain of our employees and former employees upon the exercise of equity plan grants between June 26, 2014 and June 29, 2021. The shares of Class A common stock held by the Selling Stockholders are subject to certain agreements (the Market Stand-off Agreements) not to sell such shares for up to 180 days following the date of the prospectus related to our initial public offering (IPO). As permitted by the underwriting agreement dated June 29, 2021 among us and the underwriters for the IPO, we have released 20% of the aggregate shares and vested options held by such Selling Stockholders, as of July 28, 2021. The Shares that are not released from the Market Stand-off Agreements remain subject to such Agreements. We have determined beneficial ownership in accordance with the rules of the SEC and the information is not necessarily indicative of beneficial ownership for any other purpose. Unless otherwise indicated below, to our knowledge, the persons and entities named in the table have sole voting and sole investment power with respect to all shares that they beneficially own, subject to community property laws where applicable. In computing the number of shares of our common stock beneficially owned by a person and the percentage ownership of that person, we deemed outstanding shares of our common stock subject to options held by that person that are currently exercisable or exercisable within 60 days of July 29, 2021. We did not deem these shares outstanding, however, for the purpose of computing the percentage ownership of any other person.
We have based percentage ownership of our common stock prior to this offering on 41,654,834 shares of Class A common stock and 2,676,154 shares of Class B common stock outstanding as of July 29, 2021, unless otherwise noted.
Unless otherwise indicated, the address of each beneficial owner listed below is c/o Xometry, Inc., 7529 Standish Place, Suite 200, Derwood, MD 20855.
Beneficial Ownership Prior to the Offering |
Shares of Class A Common Stock Being Offered(1) |
Beneficial Ownership After the Offering(2) |
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Class A Common Stock |
Class B Common Stock |
Class A Common Stock |
Class B Common Stock |
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Selling Stockholder | Shares | % | Shares | % | Shares | % | Shares | % | ||||||||||||||||||||||||||||
Named Selling Stockholders(3) |
1,525,967 | 3.66 | 0 | 0 | 300,314 | 1,225,653 | 2.94 | 0 | 0 | |||||||||||||||||||||||||||
Other Selling Stockholders(5) |
21,793 | 0.05 | 0 | 0 | 4,184 | 17,609 | 0.04 | 0 | 0 |
* | Represents beneficial ownership of less than 1%. |
(1) | Reflects shares of our Class A common stock offered under this prospectus. |
(2) | Assumes that all of the Shares held by each Selling Stockholder and being offered under this prospectus are sold, and that no Selling Stockholder will acquire additional shares of common stock before the completion of this offering. |
(3) | Includes the following 77 named non-affiliate persons, each of whom holds at least 1,000 Shares: Dmitry Kafidov, Albert Belousov, Alexander Belskiy, Gregory Paulsen, Kevin Scofield, Charles Turkington, Aaron Lichtig, Babak Youssefi, Alex Gunter, Erik Schwartz, Brian Deignan, Chris Cope, Stephen Schwab, Kimberly White, Robert Uhlenbrock, Daniel Senai, Rachel Rush, Mark Gallagher, Jordan Greco, Matthew Topelius, Michael Dickson, Simona Chetan, John Clemmens, Tom Kurke, Orin Berman, Daniel Richards, Ted Lubin, Brady Gambatese, Jeff Duncan, Manga Dhatrika, Danny Chang, Mark Wicks, Luke Hendrix, Shawn Stanley, John Andrews, Joshua Smith, Tim Bowman, Bhargavi Maradugu, Joyce Aguilar, Kuo Lee, Brian Herbert, Elizabeth Branton, Eric Sinzinger, Andrew MacDowell, David Tedder, Drura Parrish, Charles Scott Rothrock, Garitt Quigley, Rebecca Moran, Hunter Guerin, Laurel Johnson, Katherine Verrant, Dwipam Katariya, William Sankey, Jonathan Epstein, Jose Morales, Ryan Kelly, Jia Ni, John Coyne, Chase Southard, Eugenie LaCourt, Valerie Coffman, Prasanna Pagadala, Andri Rizhakov, Tom James, Angela Kinsella, Yevhen Lukin, Benjamin Smedberg, Don Paul Corbin, Dan Robinson, Graham Taylor, Thomas Schwend, Will Levine, Joel Schadegg, Saifu Muhammad, Tim Knowlton, and Justin Burnette. Each of these persons beneficially owns less than 1% of our capital stock. |
(5) | Includes 61 unnamed non-affiliate persons, each of whom holds less than 1,000 Shares and each of whom may sell up to such amount using this prospectus. Each of these persons beneficially owns less than 1% of our capital stock. |
The Selling Stockholders listed in the above table may have sold or transferred, in transactions pursuant to this prospectus or exempt from the registration requirements of the Securities Act, some or all of their securities since the date on which the information in the above table is presented. Information about the Selling Stockholders may change from time to time. Information about other persons who may hereafter become Selling Stockholders will be set forth in prospectus supplements or post-effective amendments, if required.
Because the Selling Stockholders may offer all or some of their Shares from time to time, and none is obligated to sell any such Shares, we cannot estimate the beneficial ownership after this offering with any certainty. Also, this prospectus does not include awards that we may grant to the Selling Stockholders in the future. Such shares may subsequently be sold pursuant to this prospectus, as supplemented to reflect the offering of such shares for resale or in transactions exempt from the registration requirements of the Securities Act. See Plan of Distribution for further information.
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We are registering the Shares covered by this prospectus to permit the Selling Stockholders to conduct public secondary trading of these Shares from time to time after the date of this prospectus. We will not receive any of the proceeds of the sale of the Shares offered by this prospectus. The aggregate proceeds to the Selling Stockholders from the sale of the Shares will be the purchase price of the Shares less any discounts and commissions. We will not pay any brokers or underwriters discounts and commissions in connection with the registration and sale of the Shares covered by this prospectus. The Selling Stockholders reserve the right to accept and, together with their respective agents, to reject, any proposed purchases of Shares to be made directly or through agents.
The Shares offered by this prospectus may be sold from time to time to purchasers:
| directly by the Selling Stockholders, or |
| through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, commissions or agents commissions from the Selling Stockholders or the purchasers of the Shares. |
Any underwriters, broker-dealers or agents who participate in the sale or distribution of the Shares may be deemed to be underwriters within the meaning of the Securities Act. As a result, any discounts, commissions or concessions received by any such broker-dealer or agents who are deemed to be underwriters will be deemed to be underwriting discounts and commissions under the Securities Act. Underwriters are subject to the prospectus delivery requirements of the Securities Act and may be subject to certain statutory liabilities under the Securities Act and the Securities Exchange Act of 1934, as amended (the Exchange Act). We will make copies of this prospectus available to the Selling Stockholders for the purpose of satisfying the prospectus delivery requirements of the Securities Act. To our knowledge, there are currently no plans, arrangements or understandings between the Selling Stockholders and any underwriter, broker-dealer or agent regarding the sale of the Shares by the Selling Stockholders.
The Shares may be sold in one or more transactions at:
| fixed prices; |
| prevailing market prices at the time of sale; |
| prices related to such prevailing market prices; |
| varying prices determined at the time of sale; or |
| negotiated prices. |
These sales may be effected in one or more transactions:
| on any national securities exchange or quotation service on which the Shares may be listed or quoted at the time of sale, including the Nasdaq; |
| in the over-the-counter market; |
| in transactions otherwise than on such exchanges or services or in the over-the-counter market; |
| any other method permitted by applicable law; or |
| through any combination of the foregoing. |
These transactions may include block transactions or crosses. Crosses are transactions in which the same broker acts as an agent on both sides of the trade.
At the time a particular offering of the Shares is made, a prospectus supplement, if required, will be distributed, which will set forth the name of the Selling Stockholders, the aggregate amount of Shares being offered and the terms of the offering, including, to the extent required, (1) the name or names of any underwriters, broker-dealers or agents, (2) any discounts, commissions and other terms constituting compensation from the Selling Stockholders and (3) any discounts, commissions or concessions allowed or reallowed to be paid to broker-dealers.
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The Selling Stockholders will act independently of us in making decisions with respect to the timing, manner, and size of each resale or other transfer. There can be no assurance that the Selling Stockholders will sell any or all of the Shares under this prospectus. Further, we cannot assure you that the Selling Stockholders will not transfer, distribute, devise or gift the Shares by other means not described in this prospectus. In addition, any Shares covered by this prospectus that qualify for sale under Rule 144 of the Securities Act may be sold under Rule 144 rather than under this prospectus. The Shares may be sold in some states only through registered or licensed brokers or dealers. In addition, in some states the Shares may not be sold unless they have been registered or qualified for sale or an exemption from registration or qualification is available and complied with.
The Selling Stockholders and any other person participating in the sale of the Shares will be subject to the Exchange Act. The Exchange Act rules include, without limitation, Regulation M, which may limit the timing of purchases and sales of any of the Shares by the Selling Stockholders and any other person. In addition, Regulation M may restrict the ability of any person engaged in the distribution of the Shares to engage in market-making activities with respect to the particular Shares being distributed. This may affect the marketability of the Shares and the ability of any person or entity to engage in market-making activities with respect to the Shares.
The Selling Stockholders may indemnify any broker or underwriter that participates in transactions involving the sale of the Shares against certain liabilities, including liabilities arising under the Securities Act.
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The validity of the Shares offered hereby has been passed upon by Cooley LLP, New York, New York.
The consolidated financial statements of Xometry, Inc. as of and for the years ended December 31, 2020 and 2019 have been incorporated by reference herein into this Prospectus and Registration Statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed with the SEC are hereby incorporated by reference in this prospectus:
| The Registrants Prospectus filed on July 1, 2021 pursuant to Rule 424(b) under the Securities Act, relating to the Registration Statement on Form S-1, as amended (File No. 333-256769), which contains the Registrants audited financial statements for the latest fiscal year for which such statements have been filed. |
| The Registrants Current Report on Form 8-K filed with the Securities and Exchange Commission on July 2, 2021 (File No. 001-40546). |
| The description of the Registrants common stock which is contained in a registration statement on Form 8-A filed on June 25, 2021 (File No. 001-40546) under the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the SEC shall not be deemed incorporated by reference into this Registration Statement.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also 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 Registration Statement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and other reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SECs website at www.sec.gov. Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, including any amendments to those reports, and other information that we file with or furnish to the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act can also be accessed free of charge by linking directly from our website at www.xometry.com. These filings will be available as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. Information contained on our website is not part of this prospectus.
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The Registrant hereby undertakes to provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written or oral request of any such person, a copy of any and all of the information that has been incorporated by reference in this prospectus but not delivered with the prospectus other than the exhibits to those documents, unless the exhibits are specifically incorporated by reference into the information that this prospectus incorporates. Requests for documents should be directed to Xometry, Inc., Attention: General Counsel, 7529 Standish Place, Suite 200, Derwood, Maryland, 20855, (240) 335-7914.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registration Information and Employee Plan Annual Information.*
* | Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8. |
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. | Incorporation of Documents by Reference. |
The following documents filed with the SEC are hereby incorporated by reference in this prospectus:
| The Registrants Prospectus filed on July 1, 2021 pursuant to Rule 424(b) under the Securities Act, relating to the Registration Statement on Form S-1, as amended (File No. 333-256769), which contains the Registrants audited financial statements for the latest fiscal year for which such statements have been filed. |
| The Registrants Current Report on Form 8-K filed with the Securities and Exchange Commission on July 2, 2021 (File No. 001-40546). |
| The description of the Registrants common stock which is contained in a registration statement on Form 8-A filed on June 25, 2021 (File No. 001-40546) under the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the SEC shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also 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 Registration Statement.
Item 4. | Description of Securities. |
Not applicable.
Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
Item 6. | Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law (the DGCL) authorizes a corporations board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate agents.
The Registrants amended and restated certificate of incorporation contains provisions that limit the liability of its directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, the Registrants directors are not personally liable to it or its stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for the following:
| any breach of their duty of loyalty to the Registrant or its stockholders; |
| any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
| unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; or |
| any transaction from which they derived an improper personal benefit. |
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Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission or claim that occurred or arose prior to that amendment or repeal. If the DGCL is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of the Registrants directors will be further limited to the greatest extent permitted by the DGCL.
In addition, the Registrants amended and restated bylaws provide that it will indemnify, to the fullest extent permitted by law, any person who is or was a party or is threatened to be made a party to any action, suit or proceeding by reason of the fact that he or she is or was one of its directors or officers or is or was serving at its request as a director or officer of another corporation, partnership, joint venture, trust or other enterprise. The Registrants amended and restated bylaws provide that it may indemnify, to the fullest extent permitted by law, any person who is or was a party or is threatened to be made a party to any action, suit or proceeding by reason of the fact that he or she is or was one of its employees or agents or is or was serving at its request as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The Registrants amended and restated bylaws also provide that the Registrant must advance expenses incurred by or on behalf of a director or officer in advance of the final disposition of any action or proceeding, subject to limited exceptions.
Further, the Registrant has entered into indemnification agreements with each of its directors and executive officers that may be broader than the specific indemnification provisions contained in the DGCL. These indemnification agreements require the Registrant, among other things, to indemnify its directors and executive officers against liabilities that may arise by reason of their status or service. These indemnification agreements also require the Registrant to advance all expenses incurred by the directors and executive officers in investigating or defending any such action, suit or proceeding. The Registrant believes that these agreements are necessary to attract and retain qualified individuals to serve as directors and executive officers.
The limitation of liability and indemnification provisions that are included in the Registrants amended and restated certificate of incorporation, amended and restated bylaws and in indemnification agreements that the Registrant has entered into or will enter into with its directors and executive officers may discourage stockholders from bringing a lawsuit against its directors and executive officers for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against the Registrants directors and executive officers, even though an action, if successful, might benefit the Registrant and other stockholders. Further, a stockholders investment may be adversely affected to the extent that the Registrant pays the costs of settlement and damage awards against directors and executive officers as required by these indemnification provisions. At present, the Registrant is not aware of any pending litigation or proceeding involving any person who is or was one of its directors, officers, employees or other agents or is or was serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, for which indemnification is sought, and the Registrant is not aware of any threatened litigation that may result in claims for indemnification.
The Registrant has obtained insurance policies under which, subject to the limitations of the policies, coverage is provided to its directors and executive officers against loss arising from claims made by reason of breach of fiduciary duty or other wrongful acts as a director or executive officer, including claims relating to public securities matters, and to the Registrant with respect to payments that may be made by it to these directors and executive officers pursuant to its indemnification obligations or otherwise as a matter of law.
Certain of the Registrants non-employee directors may, through their relationships with their employers, be insured and/or indemnified against certain liabilities incurred in their capacity as members of the Registrants board of directors.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the company pursuant to the foregoing provisions, the Registrant has 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.
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Item 7. | Exemption from Registration Claimed. |
The issuance of the Shares being offered by the Form S-8 reoffer prospectus were deemed to be exempt from registration under the Securities Act in reliance upon Section 4(a)(2) of the Securities Act (or Regulation D or Regulation S promulgated thereunder), or Rule 701 promulgated under Section 3(b) of the Securities Act as transactions by an issuer not involving any public offering or pursuant to benefit plans and contracts relating to compensation as provided under Rule 701. The recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed upon the stock certificates issued in these transactions. All recipients had adequate access, through their relationships with us, to information about the Registrant.
Item 8. | Exhibits. |
* | Filed herewith. |
Item 9. | Undertakings. |
A. | The undersigned Registrant hereby undertakes: |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the 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
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(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 (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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.
B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the 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, 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.
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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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Gaithersburg, State of Maryland, on August 3, 2021.
XOMETRY, INC. | ||
By: | /s/ Randolph Altschuler | |
Randolph Altschuler | ||
Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Randolph Altschuler as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in their name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective on filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post-effective amendments thereto, 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 and necessary to be done in connection therewith, as fully 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 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, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated
Signature | Title | Date | ||
/s/ Randolph Altschuler Randolph Altschuler |
Chief Executive Officer, Co-Founder and Director (Principal Executive Officer) | August 3, 2021 | ||
/s/ James Rallo James Rallo |
Chief Financial Officer (Principal Financial and Accounting Officer) | August 3, 2021 | ||
/s/ Laurence Zuriff Laurence Zuriff |
Chief Strategy Officer, Co-Founder and Director | August 3, 2021 | ||
/s/ George Hornig George Hornig |
Director | August 3, 2021 | ||
/s/ Deborah Bial Deborah Bial |
Director | August 3, 2021 | ||
/s/ Ranjana B. Clark Ranjana B. Clark |
Director | August 3, 2021 | ||
/s/ Craig Driscoll Craig Driscoll |
Director | August 3, 2021 |
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/s/ Emily Rollins Emily Rollins |
Director | August 3, 2021 | ||
/s/ Fabio Rosati Fabio Rosati |
Director | August 3, 2021 | ||
/s/ Katharine Weymouth Katharine Weymouth |
Director | August 3, 2021 |
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Exhibit 5.1
Eric Blanchard +1 212 479 6565 eblanchard@cooley.com |
August 3, 2021
Xometry, Inc.
7529 Standish Place
Suite 200
Derwood, MD 20855
Ladies and Gentlemen:
We have acted as counsel to Xometry, Inc., a Delaware corporation (the Company), in connection with the filing of a Registration Statement on Form S-8 (the Registration Statement) with the Securities and Exchange Commission, covering the resale of up to 304,498 shares (the Shares) of the Class A Common Stock, $0.000001 par value, of the Company by the selling stockholders described in the prospectus included in the Registration Statement (the Prospectus).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and the Prospectus, (b) the Companys Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect, and (c) originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below.
We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials and the due authorization, execution and delivery of all documents by all persons other than by the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares are validly issued, fully paid and nonassessable.
Our opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. Our opinion is based on these laws as in effect on the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein.
COOLEY LLP 55 HUDSON YARDS, NEW YORK, NY 10001-2157
T: (212) 479-6000 F: (212) 479-6275 COOLEY.COM
Xometry, Inc.
August 3, 2021
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We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption Legal Matters in the Prospectus.
Sincerely,
COOLEY LLP | ||
By: | /s/ Eric Blanchard | |
Eric Blanchard |
COOLEY LLP 55 HUDSON YARDS, NEW YORK, NY 10001-2157
T: (212) 479-6000 F: (212) 479-6275 COOLEY.COM
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated April 13, 2021, with respect to the consolidated financial statements and financial statement schedule of Xometry, Inc., incorporated herein by reference and to the reference to our firm under the heading Experts in the prospectus.
/s/ KPMG LLP
McLean, VA
July 30, 2021