As filed with the Securities and Exchange Commission on March 15, 2024
Registration No. 333-252344
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VALKYRIE BITCOIN FUND
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 86-6430837 | |
| (State or Other Jurisdiction of Incorporation or Organization) |
c/o Valkyrie Digital Assets LLC Brentwood, Tennessee 37027 (218) 255-9743 |
(I.R.S. Employer Identification Number) |
(Address, Including Zip Code, and Telephone Number,
Including Area Code,
of Registrant’s Principal Executive Offices and Agent for Service)
Copies to:
Morrison C. Warren, Esq.
Chapman and Cutler LLP
320 South Canal Street
Chicago, Illinois 60606
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☒ (File No. 333-252344)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | 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. | ☐ | |||||
This post-effective amendment shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(d) under the Securities Act of 1933, as amended.
EXPLANATORY NOTE
This Post-Effective Amendment No. 2 to the Registration Statement on Form S-1 (File No. 333-252344) of Valkyrie Bitcoin Fund (the “Registration Statement”) is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the “Securities Act”), solely for the purpose of filing additional exhibits to the Registration Statement. Accordingly, this Post-Effective Amendment No. 2 consists only of a facing page, this explanatory note and Part II of the Registration Statement on Form S-1 setting forth the exhibits being added to the Registration Statement. This Post- Effective Amendment No. 2 does not modify any provision of Part I or Part II of the Registration Statement other than the additions to Item 16 of Part II as set forth below. Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment No. 2 shall become effective immediately upon filing with the Securities and Exchange Commission.
PART II—INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 16. | Exhibits and Financial Statement Schedules. |
(a) Exhibits: The following additional exhibits are filed as part of this Registration Statement.
| Exhibit | ||
| Number | Description | |
| 3.3 | First Amendment to Amended and Restated Trust Agreement | |
| 10.15 | Co-Sponsor Agreement |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Brentwood, Tennessee, on March 15, 2024.
| Valkyrie Digital Assets LLC | |||
| Sponsor of the Valkyrie Bitcoin Fund | |||
| By: | /s/ Leah Wald | ||
| Name: | Leah Wald | ||
| Title: | Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this amendment to the registration statement has been signed by the following persons in the capacities* and on the dates indicated.
|
Signature |
Capacity |
Date | ||
|
/s/ Leah Wald Leah Wald |
Chief Executive Officer (Principal Executive Officer) |
March 15, 2024 | ||
|
/s/ Steven McClurg Steven McClurg
|
Chief Investment Officer (Principal Financial Officer and Principal Accounting Officer) |
March 15, 2024 | ||
| * | The Registrant is a trust and the persons are signing in their capacities as officers of Valkyrie Digital Assets LLC, the Sponsor of the Registrant. |
Exhibit 3.3
First Amendment to the First Amended and Restated
Trust Agreement
This First Amendment (this “Amendment”) to the First Amended and Restated Trust Agreement of Valkyrie Bitcoin Fund (the “Trust”), dated as of December 28, 2023 (as heretofore amended, restated, modified and/or supplemented from time to time, the “Trust Agreement”), by and among Valkyrie Digital Assets LLC, a Delaware limited liability company (the “Sponsor”), Delaware Trust Company, a Delaware corporation, as trustee, and the Shareholders from time to time thereunder is made and entered into as of March 15, 2024. All capitalized terms used, but not defined herein, shall have the respective meanings ascribed to them in the Trust Agreement.
Recitals
Whereas, the Sponsor has determined that it is advisable and in the best interest of the Trust to amend the Trust Agreement to contemplate the appointment of a co-sponsor (the “Co-Sponsor”) to assist the Sponsor in an advisory capacity and to succeed the Sponsor as sponsor of the Trust in the event of the Sponsor’s withdrawal; and
Whereas, the Sponsor intends to appoint CoinShares Co., a Delaware corporation, to the role of Co-Sponsor immediately following the effectiveness of this Amendment.
Now, Therefore, in consideration of the mutual promises and agreements made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Agreements
1. Definitions. Section 1.1 is hereby amended by adding the following definitions in the appropriate alphabetical location:
“Co-Sponsor” means CoinShares Co., a Delaware corporation, or any other Person or Persons from time to time engaged to provide advisory and consulting services to the Trust.
“Co-Sponsor Agreement” means that certain Co-Sponsor Agreement by and between the Sponsor, the Trust and the Co-Sponsor, dated as of March 15, 2024, as may be amended from time to time.
2. Authority of the Sponsor. Paragraphs (m) through (n) of Section 6.2 of the Trust Agreement are hereby amended as follows (with additions shown as bolded and underlined and deletions as strikethrough to facilitate reading where necessary, which formatting and deleted language shall not be part of the amended Trust Agreement):
(m) Interact with the Depository as
required; and
(n) To appoint a Co-Sponsor to provide advisory and consultation services to the Trust and to serve as successor Sponsor pursuant to Section 6.9, provided that any compensation of the Co-Sponsor shall be the responsibility of the Sponsor and not the Trust and the Co-Sponsor shall have no power or authority to act on behalf of the Trust, and the Sponsor may not delegate such authority to the Co-Sponsor, until such time as the Co-Sponsor becomes the successor Sponsor pursuant to Section 6.9; and
(n) (o)
In general, but subject to Section 1.5 and Section 6.4 of this Trust Agreement, to do everything necessary, suitable
or proper for the accomplishment of any purpose or the furtherance of any power herein set forth, either alone or in association with
others, and to do every other act or thing incidental or appurtenant to, or growing out of or connected with, the aforesaid purposes or
powers.
3. Voluntary Withdrawal of the Sponsor. Section 6.9 of the Trust Agreement is hereby amended as follows (with additions shown as bolded and underlined and deletions as strikethrough to facilitate reading where necessary, which formatting and deleted language shall not be part of the amended Trust Agreement):
The Sponsor may withdraw voluntarily as
the Sponsor of the Trust only upon one hundred and twenty (120) sixty (60) days’ prior written notice
to all Shareholders and the Trustee. If the Co-Sponsor Agreement is effective at the effective time of the Sponsor’s
withdrawal, then upon the effectiveness of such withdrawal the Co-Sponsor shall automatically and without further action by the
Sponsor, Trustee or the Shareholders become the successor Sponsor and shall have all the powers, rights, duties and obligations of
the Sponsor under this Agreement. If the withdrawing Sponsor is the last remaining Sponsor and no Co-Sponsor has been
engaged by the Trust at the effective time of the Sponsor’s withdrawal, the Shareholders holding Shares equal to at
least a majority (over 50%) of the Shares may vote to elect and appoint, effective as of a date on or prior to the withdrawal, a
successor Sponsor who shall carry on the affairs of the Trust. If the Sponsor withdraws and a successor Sponsor is named, the
withdrawing Sponsor shall pay all expenses as a result of its withdrawal.
4. Liability to the Trustee. Section 2.6(e) of the Trust Agreement is hereby amended as follows (with additions shown as bolded and underlined) and deletions as strikethrough to facilitate reading where necessary, which formatting and deleted language shall not be part of the amended Trust Agreement):
The Trustee shall not
have any liability for the acts or omissions of the Sponsor, the Transfer Agent, the Prime Broker, the Cash Custodian, the Custodian,
or their respective delegates or any other Person;
5. Miscellaneous.
(a) This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware.
(b) Except as modified herein, the Trust Agreement shall remain in full force and effect and the parties hereto confirm and ratify the same.
(c) This Amendment shall be binding upon and inure to the benefit of the Sponsor, the Trustee, the Shareholders and their respective legal representatives, heirs, successors, and assigns.
[Signature Page Follows]
| 2 |
In Witness Whereof, the undersigned have executed this Amendment as of the date first written above.
| Sponsor | |||
| Valkyrie Digital Assets LLC | |||
| By: | /s/ Leah Wald | ||
| Name: | Leah Wald | ||
| Title: | CEO | ||
| Trustee | |||
| Delaware Trust Company | |||
| By: | /s/ Gregory Daniels | ||
| Name: | Gregory Daniels | ||
| Title: | Vice President | ||
| Acknowledged: | ||
| Co-Sponsor | ||
| CoinShares Co. | ||
| By: | /s/ Jared Denmark | |
| Name: | Jared Denmark | |
| Title: | Director | |
Exhibit 10.15
CO-SPONSOR AGREEMENT
THIS CO-SPONSOR AGREEMENT (the “Agreement”), dated as of March 15, 2024, is made by and among Valkyrie Digital Assets LLC, a Delaware limited liability company (“Sponsor”), Valkyrie Bitcoin Fund, a statutory trust organized under the laws of Delaware (the “Trust”), and CoinShares Co., a Delaware corporation (“Co-Sponsor”).
1. The Trust. The Trust is not an investment company under the Investment Company Act of 1940, as amended (the “1940 Act”) and it is not required to register thereunder. The Trust is not a commodity pool for purposes of the Commodity Exchange Act of 1936, as amended, and the Sponsor is not subject to regulation by the Commodity Futures Trading Commission as a commodity pool operator or a commodity trading advisor. The Sponsor is not registered as an investment adviser under the Investment Advisers Act of 1940, as amended, and is not required to register thereunder.
2. Appointment. Pursuant to the terms of the Trust’s First Amended and Restated Trust Agreement (the “Trust Agreement”), as amended, Co-Sponsor is hereby appointed to serve as co-sponsor for the Trust. Co-Sponsor has accepted such appointment and hereby agrees to render such services to the Trust on the terms and conditions set forth in this Agreement and the Trust Agreement.
3. Successor Sponsor. Co-Sponsor acknowledges and agrees that upon the effectiveness of Sponsor’s withdrawal in accordance with Section 6.9 of the Trust Agreement, Co-Sponsor will automatically be appointed successor Sponsor and will perform such duties for the Trust as set forth in Article VI of the Trust Agreement in accordance with Sponsor’s best judgment and as outlined in the Trust’s then-current registration statement filed with the U.S. Securities and Exchange Commission (“SEC”). The Trust and the Co-Sponsor hereby agree that upon the effectiveness of the Sponsor’s withdrawal pursuant to Section 6.9 of the Trust Agreement, the Sponsor Agreement, dated as of December 28, 2023 by and between the Sponsor and the Trust (the “Sponsor Agreement”), shall apply to Trust and the Co-Sponsor, mutatis mutandis, replacing the Sponsor with the Co-Sponsor where applicable.
4. Co-Sponsor’s Compensation. Until such time as the Co-Sponsor becomes the successor Sponsor of the Trust, the Co-Sponsor shall not be entitled to any compensation from the Trust. Upon becoming the successor Sponsor of the Trust, the Co-Sponsor will be entitled to the compensation due the Sponsor as provided in the Sponsor Agreement.
5. Governing Law/Disputes. This Agreement is entered into in accordance with and shall be governed by the laws of the State of Delaware; provided, however, that in the event that any law of the State of Delaware shall require that the laws of another state or jurisdiction be applied in any proceeding, such Delaware law shall be superseded by this paragraph, and the remaining laws of the State of Delaware shall nonetheless be applied in such proceeding. Each party agrees that in the event that any dispute arising from or relating to this Agreement becomes subject to any judicial proceeding, such party waives any right it may otherwise have to (a) seek punitive damages, or (b) request a jury trial.
6. Termination. This Agreement may be terminated by any party (i) at any time upon 30 days’ prior written notice; or (ii) upon discovery of acts of fraud or willful malfeasance of the other party in performing its duties hereunder. Any obligation or liability of either party resulting from actions or inactions occurring prior to termination shall not be affected by termination of this Agreement.
7. Assignment. This Agreement may be assigned by any party upon prior notice to the other party.
8. Notices. All notices and other communications under this Agreement shall be in writing and shall be addressed to the parties at their respective addresses.
9. Severability. In the event any provision of this Agreement is adjudicated to be void, illegal, invalid or unenforceable, the remaining terms and provisions of this Agreement shall not be affected thereby, and each of such remaining terms and provisions shall be valid and enforceable to the fullest extent permitted by law, unless a party demonstrates by a preponderance of the evidence that the invalidated provision was an essential economic term of this Agreement.
10. Integration; Amendment. This Agreement together with any other written agreements between the parties entered into concurrently with this Agreement contain the entire agreement between the parties with respect to the transactions contemplated hereby and supersede all previous oral or written negotiations, commitments and understandings related thereto. This Agreement may not be amended or modified in any respect, nor may any provision be waived, without the written agreement of both parties. No waiver by one party of any obligation of the other hereunder shall be considered a waiver of any other obligation of such party.
11. Further Assurances. Each party hereto shall execute and deliver such other documents or agreements as may be necessary or desirable for the implementation of this Agreement and the consummation of the transactions contemplated hereby.
12. Headings. The headings of paragraphs herein are included solely for convenience and shall have no effect on the meaning of this Agreement.
13. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to be one and the same instrument.
| 1 |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
| Valkyrie Bitcoin Fund | |||
| By: Valkyrie Digital Assets LLC | |||
| By: | /s/ Leah Wald | ||
| Name: | Leah Wald | ||
| Title: | CEO | ||
| Sponsor | |||
| Valkyrie Digital Assets LLC | |||
| By: | /s/ Leah Wald | ||
| Name: | Leah Wald | ||
| Title: | CEO | ||
| Co-Sponsor | |||
| CoinShares Co. | |||
| By: | /s/ Jared Denmark | ||
| Name: | Jared Denmark | ||
| Title: | Director | ||
| Signature Page – Co-Sponsor Agreement | ||