Form S-4/A VPC Impact Acquisition

November 29, 2021 6:12 AM EST

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Exhibit 8.1

 

November __, 2021    

 

        

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Orrick, Herrington & Sutcliffe LLP

 

The Orrick Building

405 Howard Street

San Francisco, CA 94105-2669

 

+1 415 773 5700

 

orrick.com

Dave Inc.

1265 South Cochran Avenue

Los Angeles, CA 90019

Ladies and Gentlemen:

We have acted as counsel to Dave Inc., a Delaware corporation (“Dave”), in connection with the contemplated Mergers set forth in the Agreement and Plan of Merger (the “Merger Agreement”) made and entered into as of June 7, 2021, as amended from time to time, by and among VPC Impact Acquisition Holdings III, Inc., a Delaware corporation (“Parent”), Bear Merger Company I Inc., a Delaware corporation and a direct, wholly-owned Subsidiary of Parent (“First Merger Sub”), Bear Merger Company II LLC, a Delaware limited liability company and a direct, wholly-owned Subsidiary of Parent (“Second Merger Sub”), and Dave Inc., a Delaware corporation, and described in the Registration Statement (“Registration Statement”) on Form S-4 initially filed by Parent on October 6, 2021, as further amended. Unless otherwise indicated, capitalized terms not defined herein have the meanings set forth in the Merger Agreement.    

For purposes of this opinion, we have reviewed the Merger Agreement, the Registration Statement, and such other documents and matters of law and fact as we have considered necessary or appropriate. We have assumed that (i) the Mergers will be consummated pursuant to and in accordance with the terms of the Merger Agreement and in the manner described in the Registration Statement (and no transaction or condition described therein and affecting this opinion will be waived by any party to the Merger Agreement), (ii) the facts and statements concerning the Mergers and the parties thereto set forth in the Merger Agreement and the Registration Statement are true, complete and correct and will remain true, complete and correct at all times up to and including the Effective Time, Second Effective Time and thereafter where relevant, (iii) the statements and representations made by Dave, Parent, First Merger Sub and Second Merger Sub in their respective officer’s certificates dated as of the date hereof and delivered to us for purposes of this opinion (the “Officer’s Certificates”) are true, complete and correct and will remain true, complete and correct at all times up to and including the Effective Time, Second Effective Time and thereafter where relevant, (iv) any statements and representations made in the Merger Agreement, the Registration Statement or the Officer’s Certificates qualified by knowledge, materiality, intention, belief or any other similar qualification, are true, complete and correct, and will remain true, complete and correct at all times up to and including the Effective Time, Second Effective Time and thereafter where relevant, in each case as if made without such qualifications, and any statement regarding intention of the parties, that such actions will be performed in accordance with such intentions, (v) the parties to the Merger Agreement have complied with and will continue to comply with, their respective


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covenants and agreements contained in the Merger Agreement and all covenants contained in the Officer’s Certificates will be performed without waiver or breach of any material provision thereof, (vi) there will be no change in applicable United States federal income tax law from the date hereof through the First Effective Time and Second Effective Time, and (vii) Dave, Parent, First Merger Sub and Second Merger Sub will treat and report the Mergers as an integrated transaction and a single “reorganization” within the meaning of Section 368(a) of the Code. If any of the above-described assumptions are untrue for any reason or if the Mergers are consummated in a manner that is different from the manner described in the Merger Agreement and the Registration Statement, our opinion as expressed below may be adversely affected. We have not undertaken any independent investigation of any factual matter set forth in any of the foregoing.

Based upon and subject to the foregoing and subject to the assumptions, exceptions, limitations and qualifications set forth herein and in the Registration Statement, and our consideration of such other matters of fact and law as we have considered necessary or appropriate, we are of the opinion that the discussion set forth in the Registration Statement under the caption “Material U.S. Federal Income Tax Considerations of the Mergers to Holders of Dave Capital Stock that are United States Persons,” insofar as such discussion relates to statements of United States federal income tax law, is accurate in all material respects.

We express no opinion on any issue relating to the tax consequences of the transactions contemplated by the Merger Agreement or the Registration Statement other than the opinion set forth above. Our opinion set forth above is based on the Code, Treasury Regulations promulgated thereunder, published pronouncements of the Internal Revenue Service and judicial precedents, all as of the date hereof. The foregoing authorities may be repealed, revoked or modified, and any such change may have retroactive effect. Any change in applicable laws or facts and circumstances surrounding the Mergers, or any inaccuracy in the statements, facts, assumptions and representations on which we have relied may affect the validity of the opinion set forth herein. We assume no responsibility to inform Dave of any such change or inaccuracy that may occur or come to our attention after the date hereof. In addition, our opinion is being delivered prior to the consummation of the Mergers and therefore is prospective and dependent on future events.

This opinion is furnished to you solely in connection with the Registration Statement and this opinion is not to be relied upon for any other purpose without our prior written consent. We hereby consent to the filing of this opinion with the SEC as an exhibit to the Registration Statement, and to the references therein to us. In giving such consent, we do not thereby admit that


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we are in the category of persons whose consent is required under Section 7 of the Securities Act.

Very truly yours,

ORRICK, HERRINGTON & SUTCLIFFE LLP

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the use in the Prospectus constituting a part of this Registration Statement on Amendment No. 2 to Form S-4 of our report dated January 29, 2021, relating to the financial statements of VPC Impact Acquisition Holdings III, Inc., which is contained in that Prospectus. We also consent the reference to our Firm under the caption “Experts” in the Prospectus.

/s/ WithumSmith+Brown, PC

New York, New York

November 26, 2021

EXHIBIT 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the use in the Registration Statement on Form S-4 of VPC Impact Acquisitions Holdings III, Inc. of our report dated July 29, 2021 (except for Note 2, as to which the date is September 30, 2021), relating to the consolidated financial statements of Dave, Inc. and subsidiary as of December 31, 2020 and 2019 and for the years the ended (which report expresses an unqualified opinion and includes an explanatory paragraph relating to a restatement), and to the reference to our firm under the heading “Experts” in the proxy statement/prospectus, which is part of the Registration Statement.

/s/ Moss Adams LLP

Los Angeles, California

November 29, 2021

Exhibit 99.1

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PROXY CARD PRELIMINARY – SUBJECT TO COMPLETION FOR THE SPECIAL MEETING OF STOCKHOLDERS OF VPC Impact Acquisition Holdings III, Inc. THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS The undersigned hereby appoints Brendan Carroll and John Martin (the “Proxies”), and each of them independently, with full power of substitution, as proxies to vote all of the shares of Common Stock of VPC Impact Acquisition Holdings III, Inc. (the “Company” or “VPCC”), a Delaware corporation, that the undersigned is entitled to vote (the “Shares”) at the special meeting of stockholders of the Company to be held at [•] am Eastern Time, on [•], 2021, at the offices of White & Case LLP at 111 South Wacker Drive, Suite 5100, Chicago, Illinois 60606, and virtually at https://www.cstproxy.com/vpcc/2021 and any adjournment or postponement thereof. The undersigned acknowledges receipt of the enclosed proxy statement and revokes all prior proxies for said meeting. THE SHARES REPRESENTED BY THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED STOCKHOLDER(S). IF NO SPECIFIC DIRECTION IS GIVEN AS TO THE PROPOSALS ON THE REVERSE SIDE, THIS PROXY WILL BE VOTED “FOR” ALL PROPOSALS. PLEASE MARK, SIGN, DATE, AND RETURN THE PROXY CARD PROMPTLY. PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY. (Continued and to be marked, dated signed on reverse side) SEE REVERSE SIDE Important Notice Regarding the Availability of Proxy Materials for the Special Meeting of Stockholders to be held on [•], 2021. The notice of Special Meeting of Stockholders and accompanying Proxy Statement are available at: https://www.cstproxy.com/vpcc/2021


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THE BOARD OF DIRECTORS OF VPC IMPACT ACQUISITION HOLDINGS III, INC. RECOMMENDS A VOTE “FOR” PROPOSAL NOS. 1, 2, 3, 4, 5, 6, 7, 8 AND 9. Please mark vote as indicated in this example Proposal No. 1 — The Business Combination Proposal — To consider and vote upon a proposal to approve the Agreement and Plan of Merger, dated as of June 7, 2021 (as it may be amended from time to time, the “Merger Agreement”), by and among VPCC, Dave Inc., a Delaware corporation (“Dave”), Bear Merger Company I Inc., a Delaware corporation and a direct, wholly owned subsidiary of VPCC (“First Merger Sub”), and Bear Merger Company II LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of VPCC (“Second Merger Sub” and together with the First Merger Sub, the “Merger Subs”), pursuant to which First Merger Sub will merge with and into Dave (the “First Merger”), with Dave being the surviving corporation of the First Merger (the “Surviving Corporation”), and immediately following the First Merger, the Surviving Corporation will merge with and into Second Merger Sub (the “Second Merger,” together with the First Merger, the “Mergers” and the Mergers together with the other transactions contemplated by the Merger Agreement, the “Business Combination”), with Second Merger Sub being the surviving company of the Second Merger as a wholly owned subsidiary of VPCC (VPCC following such Mergers, hereinafter referred to as the “Combined Company”). Following the Mergers, the Combined Company will operate under the name “Dave Inc.” and the Surviving Entity will operate under the name “Dave Operating LLC”. A copy of the Merger Agreement is attached as Annex A to the proxy statement/prospectus (the “Business Combination Proposal”); FOR AGAINST ABSTAIN Proposal No. 2 — The Charter Amendment Proposal — To consider and act upon a proposal to adopt the proposed Second Amended and Restated Certificate of Incorporation of the Company (the “Proposed Charter”) attached as Annex B to the proxy statement/prospectus (the “Charter Amendment Proposal”); The Governance Proposals — To consider and act upon, on a non-binding advisory basis, eight separate governance proposals relating to the following material differences between VPCC’s Amended and Restated Certificate of Incorporation (the “Existing Charter”) and the Proposed Charter to be in effect upon the completion of the Business Combination in accordance with the United States Securities and Exchange Commission requirements: FOR AGAINST ABSTAIN Proposal No. 3A — To consider and vote upon an amendment to VPCC’s Existing Charter to increase the total number of authorized shares of all classes of capital stock from 221,000,000 shares to, following the automatic conversion of all VPCC Class B common stock, par value $0.0001 (the “VPCC Class B Common Stock”) into VPCC Class A common stock, par value $0.0001 (the “VPCC Class A Common Stock”) immediately prior to the Closing of the Business Combination, 610,000,000 shares, which would consist of (a) 500,000,000 shares of Class A common stock of the Combined Company, par value $0.0001 (the “Combined Company Class A Common Stock”), (b) 100,000,000 shares of Class V common stock of the Combined Company, par value $0.0001 (the “Combined Company Class V Common Stock”) and (c) 10,000,000 shares of preferred stock of the Combined Company, par value $0.0001. FOR AGAINST ABSTAIN Proposal No. 3B — To consider and vote upon an amendment to VPCC’s Existing Charter to authorize a dual class common stock structure pursuant to which holders of Combined Company Class A Common Stock will be entitled to one vote per share and holders of Combined Company Class V Common Stock will be entitled to ten votes per share on each matter properly submitted to the Combined Company’s stockholders entitled to vote. FOR AGAINST ABSTAIN Proposal No. 3C — To consider and vote upon an amendment to VPCC’s Existing Charter to require, with respect to any vote to increase or decrease the number of authorized shares of any class or classes of stock (but not below the number of shares then outstanding), the affirmative vote of a majority of the holders of all of the then-outstanding shares of capital stock of the Combined Company entitled to vote thereon, voting together as a single class, irrespective of the provisions of Section 242(b)(2) of the Delaware General Corporation Law, and no vote of the holders of the Combined Company Class A Common Stock voting separately as a class shall be required therefor. FOR AGAINST ABSTAIN Proposal No. 3D — To consider and vote upon an amendment to VPCC’s Existing Charter to provide, subject to the special rights of the holders of any series of preferred stock of the Combined Company, that no director may be removed from the Combined Company board except for cause and only by the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of the then-outstanding shares of capital stock of the Combined Company entitled to vote generally in the election of directors voting together as a single class; FOR AGAINST ABSTAIN Proposal No. 3E — To consider and vote upon an amendment to VPCC’s Existing Charter to require the affirmative vote of either a majority of the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships (the “Whole Board”) or the holders of at least two-thirds (2/3) of the voting power of all then-outstanding shares of capital stock of the Combined Company entitled to vote generally in the election of directors, voting together as a single class, for the adoption, amendment, or repeal of any provision of the bylaws (in addition to any vote of the holders of any class or series of stock of required by applicable law or by the Proposed Charter of the Combined Company); provided, however, that if two-thirds (2/3) of the Whole Board has approved such adoption, amendment or repeal, then only the affirmative vote of the holders of at least a majority of the voting power of all then-outstanding shares of capital stock of the Combined Company entitled to vote generally in the election of directors, voting together as a single class, shall be required to adopt, amend or repeal any provision of the Bylaws; FOR AGAINST ABSTAIN Proposal No. 3F — To consider and vote upon an amendment to VPCC’s Existing Charter to require the affirmative vote of a majority of the board of directors and the holders of two-thirds (2/3) of the voting power of the then-outstanding shares of capital stock of the Combined Company for the adoption, amendment, or repeal of certain provisions of the Proposed Charter; provided that if two-thirds (2/3) of the Whole Board has approved such amendment or repeal, then only the affirmative vote of the holders of at least a majority of the voting power of the then-outstanding shares of capital stock of the Combined Company will be required for the amendment or repeal of such provision; FOR AGAINST ABSTAIN Proposal No. 3G — To consider and vote upon an amendment to VPCC’s Existing Charter to clarify that the exclusive jurisdiction of the Chancery Court of the State of Delaware shall not apply to suits brought to enforce any duty or liability under the Securities Act or the Exchange Act, or any other claim for which the federal courts have exclusive jurisdiction. To the fullest extent permitted by law, the federal district courts of the United States of America shall be the sole and exclusive forum for the resolution of claims arising under the Securities Act; and FOR AGAINST ABSTAIN Proposal No. 3H — To consider and vote upon an amendment to VPCC’s Existing Charter to authorize all other proposed changes, including, among others, those (i) resulting from the Business Combination, including changing the post-business combination corporate name from “VPC Impact Acquisition Holdings III, Inc.” to “Dave Inc.” and removing certain provisions relating to VPCC’s prior status as a blank check company and VPCC Class B Common Stock that will no longer apply upon the Closing, or (ii) that are administrative or clarifying in nature, including the deletion of language without substantive effect. Proposal No. 4 — The Director Election Proposal — a proposal to elect, assuming the Business Combination Proposal, the Charter Amendment Proposal and the Share Issuance Proposal (as defined below) are all approved and adopted, [ ] directors to the Combined Company’s board of directors, with each Class I director having a term that expires at the Combined Company’s 2022 annual meeting of stockholders, each Class II director having a term that expires at the Combined Company’s 2023 annual meeting of stockholders, and each Class III director having a term that expires at the Combined Company’s 2024 annual meeting of stockholders, or in each case until their respective successors are duly elected and qualified, or until their earlier resignation, removal or death (the “Director Election Proposal”). FOR WHITHOLD FOR ALL ALL ALL EXCEPT Class I Charles “Skip” Paul Class II Dan Preston Andrea Mitchell Class III Jason Wilk Brendan Caroll To withhold authority to vote for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below. Proposal No. 5 — The 2021 Equity Incentive Plan Proposal — To approve and adopt the 2021 Equity Incentive Plan (the “2021 Plan”) and material terms thereunder (the “2021 Equity Incentive Plan Proposal”). and adopt the 2021 Employee Stock Purchase Plan (the “Employee Stock

Exhibit 99.4

CONSENT OF PERSON NAMED TO BECOME A DIRECTOR

Pursuant to Rule 438 promulgated under the Securities Act of 1933, as amended, the undersigned hereby consents to being named as a director nominee and to the disclosure of the undersigned’s biographical information included in the Registration Statement on Form S-4, and any amendments thereto, to be filed by VPC Impact Acquisition Holdings III, Inc. with the Securities and Exchange Commission. The undersigned further consents to the filing of this consent as an exhibit to such Registration Statement.

 

 

/s/ Charles S. Paul

Name:   Charles S. Paul
Date:   November 29, 2021

Exhibit 99.5

CONSENT OF PERSON NAMED TO BECOME A DIRECTOR

Pursuant to Rule 438 promulgated under the Securities Act of 1933, as amended, the undersigned hereby consents to being named as a director nominee and to the disclosure of the undersigned’s biographical information included in the Registration Statement on Form S-4, and any amendments thereto, to be filed by VPC Impact Acquisition Holdings III, Inc. with the Securities and Exchange Commission. The undersigned further consents to the filing of this consent as an exhibit to such Registration Statement.

 

 

/s/ Andrea Mitchell

Name:   Andrea Mitchell
Date:   November 29, 2021


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