Approximate date of commencement proposed sale
to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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. ☐
SUBJECT TO COMPLETION,
DATED DECEMBER 29, 2021
Prospectus
American Virtual Cloud Technologies, Inc.
37,916,668 Shares of Common Stock
This prospectus relates to the resale by the
selling stockholders of up to an aggregate of 37,916,668 shares of common stock, par value $0.0001 per share (the “Common Stock”),
of American Virtual Cloud Technologies, Inc. (“AVCT,” “we,” “us” or the “Company”). The
number of shares of Common Stock offered for sale by such selling stockholders consists of 6,666,668 shares of Common Stock issuable
upon conversion of the Series A Warrant (as defined below) and 31,250,000 shares of Common Stock issuable upon conversion of the Series
D Warrant (as defined below).
We are registering these shares on behalf of
the selling stockholders, to be offered and sold by them from time to time, to satisfy certain registration rights that we have granted
to the selling stockholders. The selling stockholders identified in this prospectus, or their respective transferees, pledgees or donees,
or their respective successors, may offer the shares from time to time through public or private transactions at prevailing market prices,
at prices related to prevailing market prices or at privately negotiated prices. The selling stockholders may resell the shares of common
stock directly or through one or more underwriters, broker-dealers or agents. For additional information on the methods of sale that
may be used by the selling stockholders, see the section entitled “Plan of Distribution” on page 7. For a list of the selling
stockholders, see the section entitled “Selling Stockholders” on page 6.
Our registration of the shares of Common Stock
covered by this prospectus does not mean that the selling stockholders will offer or sell any of the shares. No underwriter or other
person has been engaged to facilitate the sale of the shares in this offering. The selling stockholders will pay or assume discounts,
commissions, fees of underwriters, selling brokers or dealer managers and similar expenses, if any, incurred for the sale of shares of
our Common Stock.
We may amend or supplement this prospectus from
time to time by filing amendments or supplements as required. You should read the entire prospectus and any amendments or supplements
carefully before you make your investment decision.
Our Common Stock is listed on The Nasdaq Capital
Market under the symbol “AVCT.” The last reported sale price of our Common Stock on December 28, 2021 was $2.39 per share.
Investing in our securities involves certain
risks. See the risk factors in our most recent Annual Report on Form 10-K filed on March 31, 2021, as amended, which is incorporated
by reference herein, as well as in any other recently filed quarterly or current reports. We urge you to carefully read this prospectus,
together with the documents we incorporate by reference, describing the terms of these securities before investing.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
The date of this Prospectus is December 29, 2021
CAUTIONARY NOTE REGARDING
FORWARD LOOKING STATEMENTS
This prospectus and the documents incorporated
by reference herein may contain forward looking statements that involve risks and uncertainties. All statements other than statements
of historical fact contained in this prospectus and the documents incorporated by reference herein, including statements regarding future
events, our future financial performance, business strategy, and plans and objectives of management for future operations, are forward-looking
statements. We have attempted to identify forward-looking statements by terminology including “anticipates,” “believes,”
“can,” “continue,” “could,” “estimates,” “expects,” “intends,”
“may,” “plans,” “potential,” “predicts,” “should,” or “will”
or the negative of these terms or other comparable terminology. Although we do not make forward looking statements unless we believe
we have a reasonable basis for doing so, we cannot guarantee their accuracy. These statements are only predictions and involve known
and unknown risks, uncertainties and other factors, including the risks outlined under “Risk Factors” or elsewhere in this
prospectus and the documents incorporated by reference herein, which may cause our or our industry’s actual results, levels of
activity, performance or achievements expressed or implied by these forward-looking statements. Moreover, we operate in a highly regulated
and rapidly changing environment. New risks emerge from time to time and it is not possible for us to predict all risk factors, nor can
we address the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause our actual
results to differ materially from those contained in any forward-looking statements.
We have based these forward-looking statements
largely on our current expectations and projections about future events and financial trends that we believe may affect our financial
condition, results of operations, business strategy, short term and long term business operations, and financial needs. These forward-looking
statements are subject to certain risks and uncertainties that could cause our actual results to differ materially from those reflected
in the forward looking statements. Factors that could cause or contribute to such differences include, but are not limited to, those
discussed in this prospectus, and in particular, the risks discussed below and under the heading “Risk Factors” and those
discussed in other documents we file with the Securities and Exchange Commission, or SEC. The following discussion should be read in
conjunction with the financial statements for the fiscal years ended December 31, 2018 and 2017 and notes incorporated by reference therein.
We undertake no obligation to revise or publicly release the results of any revision to these forward-looking statements, except as required
by law. In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances discussed in this prospectus
may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statement.
You should not place undue reliance on any forward-looking
statement, each of which applies only as of the date of this prospectus. Except as required by law, we undertake no obligation to update
or revise publicly any of the forward-looking statements after the date of this prospectus to conform our statements to actual results
or changed expectations.
Any forward-looking statement you read in this
prospectus or any document incorporated by reference reflects our current views with respect to future events and is subject to these
and other risks, uncertainties and assumptions relating to our operations, operating results, growth strategy and liquidity. You should
not place undue reliance on these forward-looking statements because such statements speak only as to the date when made. We assume no
obligation to publicly update or revise these forward-looking statements for any reason, or to update the reasons actual results could
differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future,
except as otherwise required by applicable law. You are advised, however, to consult any further disclosures we make on related subjects
in our reports on Forms 10-Q, 8-K and 10-K filed with the SEC. You should understand that it is not possible to predict or identify all
risk factors. Consequently, you should not consider any such list to be a complete set of all potential risks or uncertainties.
PROSPECTUS SUMMARY
This summary highlights selected information
contained elsewhere in this prospectus. This summary does not contain all the information that you should consider before
investing in our Company. You should carefully read the entire prospectus, including all documents incorporated by reference
herein. In particular, attention should be directed to our “Risk Factors,” “Information With Respect to the Company,” “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and the financial statements and related notes thereto
contained herein or otherwise incorporated by reference hereto, before making an investment decision.
Overview
We were incorporated, in Delaware, as Pensare
Acquisition Corp, a special purpose acquisition company (“SPAC”) on April 7, 2016 for the purpose of entering into one or
more mergers, share exchanges, asset acquisitions, stock purchases, recapitalizations, reorganizations or other similar business combinations
with one or more target businesses.
On April 7, 2020, we consummated a business combination
transaction (the “Computex Business Combination”) in which we acquired Stratos Management Systems, Inc. (“Computex”),
a private operating company that does business as Computex Technology Solutions. The Computex Business Combination was consummated pursuant
to the terms of an amended agreement originally entered into on July 25, 2019. In connection with the closing of the Computex Business
Combination, the Company changed its name to American Virtual Cloud Technologies, Inc.
On December 1, 2020, we acquired the Kandy Communications
business (hereafter referred to as “Kandy” or “Kandy Communications”) from Ribbon Communications, Inc. and certain
of its affiliates (“Ribbon”), by acquiring certain assets, assuming certain liabilities and acquiring all of the outstanding
membership interests of Kandy Communications LLC.
Recent Developments
On September 16, 2021,
we issued a press release announcing that as a result of the decision by the Company’s Board of Directors to explore strategic
alternatives announced April 7, 2021, the Board had authorized the Company to focus its strategy on acquisitions and organic growth in
its cloud technologies business as well as to explore strategic opportunities for its IT solutions business, including the planned divestiture
of Computex Technology Group (Computex). The Company further announced that the process that was established upon receipt of the Company’s
previously announced non-binding proposal did not result in the submission of a definitive offer, and that it had completed the conversion
of $133.9 million of outstanding debentures into 38.8 million common shares which had been registered for resale.
On November 5, 2021,
we consummated (the “Closing”) the transactions contemplated by the securities purchase agreement, dated as of November 2,
2021 (the “Purchase Agreement”), between the Company and the buyer set forth on the signature page thereto (the “Buyer”).
At the Closing, the
Company issued to the Buyer, in addition to 2,500,000 shares of the Company’s common stock, par value $0.0001 per share (“Common
Stock”), (i) a warrant to purchase up to 5,000,000 shares of Common Stock, as described below (the “Series A Warrant”)
and (ii) a warrant to purchase up to 2,500,000 shares of Common Stock (the “Series B Warrant” and, collectively with the
Series A Warrant, the “Warrants”). The Series A Warrant and the Series B Warrant each is immediately exercisable at an initial
exercise price of $2.00 per share, subject to customary adjustments for stock dividends, stock splits, reclassifications and the like,
and subject to price-based adjustment, on a “full ratchet” basis, in the event of any issuances of Common Stock, or securities
convertible, exercisable or exchangeable for, Common Stock at a price below the then-applicable exercise price (subject to certain exceptions).
The Series A Warrant and Series B Warrant will expire on November 5, 2026 and November 5, 2023, respectively. Commencing on November
15, 2021, the Company will have the right to force the Buyer to exercise the Series B Warrant in the event shares of Common Stock trade
at or above $2.40 per share for a period of five consecutive trading days, subject to certain conditions, including equity conditions.
Initially, the Series A Warrant is only exercisable for 2,500,000 shares of Common Stock, but upon any exercise of the Series B Warrant,
the number of shares issuable upon exercise of the Series A Warrant will be increased by the number of shares of Common Stock issued
upon exercise of the Series B Warrant.
Also at the Closing,
the Company entered into a registration rights agreement (the "Registration Rights Agreement") with the Buyer. Pursuant to
the terms of the Registration Rights Agreement, the Company has agreed to prepare and file with the SEC within 30 days following the
Closing a registration statement covering the resale of the shares of Common Stock issuable upon exercise of the Series A Warrant, and
to use reasonable best efforts to cause such registration statement to be declared effective under the Securities Act of 1933, as amended
(the “Securities Act”), as soon as practicable. If the registration statement is not filed within 30 days after the Closing
or is not declared effective by the applicable deadline set forth in the Registration Rights Agreement, or under certain other circumstances
described in the Registration Rights Agreement, then the Company shall be obligated to pay to the Buyer an amount in cash equal to 1%
of the Buyer’s “Effective Purchase Price” (as defined in the Registration Rights Agreement) until the applicable event
giving rise to such payments is cured, subject to a cap of 10% of the Buyer’s Effective Purchase Price. The Registration Rights
Agreement also provides that the Company is obligated to file additional registration statements under certain circumstances, and provides
the Buyer with customary “piggyback” registration rights.
On December 2, 2021, the Company entered into
a Credit Agreement (the “Credit Agreement”) with Monroe Capital Management Advisors, LLC (“Administrative Agent”)
and the lenders party thereto. The Credit Agreement provides for a $27,000,000 term loan facility (the “Credit Facility”),
which matures on the earliest of (i) December 2, 2022, (ii) termination of Term Loan Commitments (as defined in the Credit Agreement”)
and (iii) the date on which the Company consummates a sale of Computex. The Company is required to comply with terms, conditions and
timeframes set forth in specified sale milestones for its consummation of the sale of Computex. The Company is required to use the proceeds
of the term loans solely to repay debt under that certain credit agreement, dated as of December 18, 2017 (as amended, the “Prior
Credit Agreement”), by and among Stratos Management Systems, Inc. (f/k/a Tango Merger Sub Corp.), the Company, certain domestic
subsidiaries of the Company and Comerica Bank, as lender, for working capital purposes, and for other general business purposes.
In connection with the closing of the Credit
Facility and pursuant to a subscription agreement, the Company issued to certain funds affiliated with Monroe Capital (the “Holders”)
warrants to purchase, in the aggregate, up to 2,508,352 shares of Common Stock (the “Monroe Warrants”). The number of shares
of Common Stock issuable upon exercise of the Monroe Warrants is subject to, in addition to customary adjustments for stock dividends,
stock splits, reclassifications and the like, adjustment for certain issuances (or deemed issuances) of common stock at a price per share
below $1.564 while the Monroe Warrants are outstanding, such that the Monroe Warrants will remain exercisable for, in the aggregate,
approximately 2.5% of the total number of shares of Common Stock outstanding, calculated on a fully-diluted basis. The Monroe Warrants
are immediately exercisable and will expire on January 31, 2029.
Also on December 2, 2021, in connection with
the closing of the Credit Facility, the Company entered into an amendment and waiver (the “Amendment”) with the Buyer under
the Purchase Agreement. Pursuant to the Amendment, the Buyer waived certain of its rights under the Purchase Agreement related to the
issuance of the Monroe Warrants (and any underlying shares of Common Stock), including standstill and preemptive rights under the Purchase
Agreement. The Buyer also agreed that the issuance of shares of Common Stock pursuant to the Monroe Warrants, subject to a cap of 5,016,704
shares (subject to adjustment for stock splits and similar events), would not result in any adjustment to the exercise price of the Series
A Warrant and Series B Warrant (except as set forth in the following sentence). Also pursuant to the Amendment, the Company lowered the
per share exercise price of the Series A Warrant and Series B Warrant from $2.00 to $1.50, which resulted in an adjustment in the number
of shares of Common Stock currently issuable upon exercise of each of the Series A Warrant and Series B Warrant from 2,500,000 to 3,333,334.
In consideration of the waivers by the Buyer in the Amendment, on December 2, 2021 the Company issued to the Buyer a warrant to purchase
up to 1,500,000 shares of Common Stock, at an exercise price of $0.0001 per share (the “Series C Warrant”). The Series C
Warrant was immediately exercisable, and was subsequently exercised in full.
On December 15, 2021, the Company consummated
(the “December Closing”) the transactions contemplated by the securities purchase agreement, dated as of December 13, 2021
(the “December Purchase Agreement”), between the Company and the Buyer.
At the December Closing, the Company issued to
the Buyer (i) a warrant (the “Series D Warrant”) to purchase up to 15,625,000 shares of Common Stock, in a private placement
(the “Private Placement”); and (ii) an aggregate of 7,840,000 shares of Common Stock (the “Common Shares”), and
12,456 shares (the “Preferred Shares”) of the Company’s newly-designated Series A convertible preferred stock (the
“Series A Preferred”) with a stated value of $1,000 per share, initially convertible into 7,785,000 shares of Common Stock
at a conversion price of $1.60 per share, in a registered direct offering (the “Public Offering”). The aggregate purchase
price paid by the Buyer at the December Closing for the Common Shares, the Preferred Shares and the Series D Warrant was $25,000,000.
The Series D Warrant has an exercise price of
$2.00 per share, subject to customary adjustments for stock dividends, stock splits, reclassifications and the like, and subject to price-based
adjustment, on a “full ratchet” basis, in the event of any issuances of Common Stock, or securities convertible, exercisable
or exchangeable for, Common Stock at a price below the then-applicable exercise price (subject to certain exceptions). The Series D Warrant
is immediately exercisable, and will expire on December 15, 2026. The Company will have the right to force the Buyer to exercise the
Series D Warrant in the event the volume weighted average closing price of the Common Stock is at or above $5.00 per share for a period
of three consecutive trading days, subject to certain conditions, including equity conditions.
The Series A Preferred will be convertible into
Common Stock at the election of the holder at any time at an initial conversion price of $1.60 (the “Conversion Price”).
The Conversion Price is subject to customary adjustments for stock dividends, stock splits, reclassifications and the like, and subject
to price-based adjustment, on a “full ratchet” basis, in the event of any issuances of Common Stock, or securities convertible,
exercisable or exchangeable for, Common Stock at a price below the then-applicable Conversion Price (subject to certain exceptions).
No dividends will be payable on the Series A Preferred, except that holders of Series A Preferred would be entitled to receive any dividends
paid on account of the Common Stock, on an as-converted basis. The holders of Series A Preferred have no voting rights on account of
the Series A Preferred, other than with respect to certain matters affecting the rights of the Series A Preferred.
Also at the December Closing, the Company entered
into a registration rights agreement (the “December Registration Rights Agreement”) with the Buyer. Pursuant to the terms
of the December Registration Rights Agreement, the Company has agreed to prepare and file with the SEC within 30 days following the December
Closing a registration statement covering the resale of the shares of Common Stock issuable upon exercise of the Series D Warrants, and
to use reasonable best efforts to cause such registration statement to be declared effective under the Securities Act as soon as practicable.
If the registration statement is not filed within 30 days after the December Closing or is not declared effective by the applicable
deadline set forth in the December Registration Rights Agreement, or under certain other circumstances described in the December Registration
Rights Agreement, then the Company shall be obligated to pay to the Buyer an amount in cash equal to 1% of the Buyer’s “Effective
Purchase Price” (as defined in the December Registration Rights Agreement) until the applicable event giving rise to such payments
is cured, subject to a cap of 10% of the Buyer’s Effective Purchase Price. The December Registration Rights Agreement also provides
that the Company is obligated to file additional registration statements under certain circumstances, and provides the Buyer with customary
“piggyback” registration rights.
Principal Offices
Our principal executive offices are located at
1720 Peachtree Street, Suite 629, Atlanta, GA 30309, and the telephone number is (404) 239-2863. Information about us is available on
our website https://www.avctechnologies.com/. The information contained on our website or that can be accessed through our website does
not constitute part of this prospectus and is not incorporated in any manner into this prospectus.
The Offering
We previously registered the resale by the selling
stockholder named in this prospectus of up to 6,666,668 shares of our common stock, par value $0.0001 per share (the “Common Stock”),
issuable upon exercise of the Series A Warrant (after giving effect to the Amendment), representing 200% of the maximum number of shares
of Common Stock initially issuable upon exercise of the Series A Warrant (without taking into account any limitations on the exercise
of the Series A Warrant set forth in the Series A Warrant). Pursuant to the terms of the Series A Warrant, the maximum number of shares
issuable upon exercise of the Series B Warrant will increase upon any exercise of the Series B Warrant, on a share for share basis (such
that if the Series B Warrant is fully exercised, the maximum number of shares of Common Stock for which the Series A Warrant would be
exercisable would be increased from 3,333,334 to 6,666,668). Accordingly, the registration statement of which this prospectus forms a
part is being filed in part to register 200% of the 3,333,334 additional shares of Common Stock issuable upon exercise of the Series
A Warrant, to the extent that the Series B Warrant is exercised (without taking into account any limitations on the exercise of the Series
A Warrant set forth in the Series A Warrant). In addition, the registration statement of which this prospectus forms a part is being
filed to register 200% of the 15,625,000 shares of Common Stock issuable upon exercise of the Series D Warrant.
Our Common Stock is
currently listed on Nasdaq under the symbol “AVCT.” We will not receive any of the proceeds of sales by the selling stockholders
of any of the shares covered by this prospectus.
When we refer to the
“selling stockholders” in this prospectus, we are referring to the holders of the foregoing securities, and their transferees,
pledgees or donees, or their respective successors-in-interest that may be identified in a supplement to this prospectus or, if required,
a post-effective amendment to the registration statement of which this prospectus is a part.
THE
OFFERING
Common
stock offered by the selling stockholders herein:
|
37,916,668
shares
|
|
|
Common stock outstanding:
|
87,049,106 shares
|
|
|
Use
of Proceeds:
|
We will not receive any
proceeds from the sale of the common stock by the selling stockholders.
|
|
|
The
Offering Price:
|
The selling stockholders
may sell all or a portion of their shares through public or private transactions at prevailing market prices or at privately negotiated
prices.
|
|
|
The
Nasdaq Capital Market Symbol:
|
AVCT
|
|
|
Risk
Factors:
|
An investment in our company
is highly speculative and involves a significant degree of risk. See “Risk Factors” and other information
included in this prospectus for a discussion of factors you should carefully consider before deciding to invest in shares of our
common stock.
|
USE OF PROCEEDS
We will not receive any proceeds from the sale
of the common stock by the selling stockholders.
The holders of the Series A Warrant and the Series
D Warrant are not obligated to exercise the Series A Warrant or the Series D Warrant, and we cannot predict whether the holders of the
Series A Warrant or the Series D Warrant will choose to exercise the Warrants. If the Series B Warrant is exercised in full, such that
the Series A Warrant becomes exercisable for the maximum number of shares potentially issuable under the Series A Warrant, we would receive
gross proceeds of approximately $5,000,000 (in addition to the gross proceeds of approximately $5,000,000 we would receive if the Series
A Warrant is exercised for all of the 3,333,334 shares of Common Stock for which it is exercisable prior to any exercise of the Series
B Warrant). If the Series D Warrant is exercised in full, we would receive gross proceeds of approximately $31,250,000. We currently
intend to use such proceeds, if any, for working capital and general corporate purposes.
DETERMINATION OF OFFERING
PRICE
The selling stockholders will offer common stock
at the prevailing market prices or a privately negotiated price as it may determine from time to time.
The offering price of our common stock to be
sold by the selling stockholder does not necessarily bear any relationship to our book value, assets, past operating results, financial
condition or any other established criteria of value. The facts considered in determining the offering price were our financial condition
and prospects, our limited operating history and the general condition of the securities market.
In addition, there is no assurance that our common
stock will trade at market prices in excess of the offering price as prices for common stock in any public market will be determined
in the marketplace and may be influenced by many factors, including the depth and liquidity.
SELLING STOCKHOLDERS
The shares of common stock being offered by the
selling stockholders are those issuable to the selling stockholders upon exercise of the warrants. For additional information regarding
the issuance of those warrants, see “Recent Developments” above. We are registering the shares of common stock in order to
permit the selling stockholders to offer the shares for resale from time to time. Except for the ownership of the shares of Common Stock
and Warrants issued pursuant to the Purchase Agreement, the selling stockholders have not had any material relationship with us within
the past three years.
The table below lists the selling stockholders
and other information regarding the beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder) of the shares of common stock by each of the selling stockholders. The second column
lists the number of shares of common stock beneficially owned by each selling stockholder, based on its ownership of the common stock
and the warrants, as of December 27, 2021, assuming exercise of all warrants held by the selling stockholders on that date, but taking
account of any limitations on exercise set forth therein.
The third column lists the shares of common stock
being offered by this prospectus by the selling stockholders and does not take into account any limitations on exercise of the warrants
set forth therein.
In accordance with the terms of two separate
registration rights agreements with the selling stockholders, this prospectus generally covers the resale of 200% of the maximum number
of shares of common stock issued or issuable upon exercise of the warrants as of the Trading Day immediately preceding the date the registration
statement is initially filed with the SEC. Because the number of shares of common stock issuable upon exercise of the warrants may be
adjusted, the number of shares that will actually be issued may be more or less than the number of shares being offered by this prospectus.
The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus.
Under the terms of the warrants, a selling stockholder
may not exercise the warrants to the extent such exercise would cause such selling stockholder, together with its affiliates, to beneficially
own a number of shares of our common stock which would exceed 9.99% of our then outstanding shares of common stock following such exercise,
excluding for purposes of such determination shares of the Company (the “Maximum Percentage”). The number of shares in the
second column reflects these limitations. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan
of Distribution.”
Name of Selling Stockholder
|
|
Shares Beneficially
Owned Prior to the
Offering(1)
|
|
|
Maximum Number of Shares Being Offered
Pursuant to this Prospectus
|
|
|
Shares Beneficially
Owned After Offering
|
|
|
|
Number
|
|
|
Percent
|
|
|
|
|
|
Number
|
|
|
Percent
|
|
Hudson Bay Master
Fund Ltd.(2)
|
|
|
8,617,861
|
(3)
|
|
|
9.99
|
%
|
|
|
37,916,668
|
|
|
|
3,022,846
|
|
|
|
2.4
|
%
|
(1)
|
Applicable percentage ownership is based on 87,049,106 shares of our
common stock outstanding as of December 27, 2021 and based on 124,965,774 shares of our common stock
outstanding after the offering.
|
(2)
|
Hudson Bay Capital Management LP, the investment manager of Hudson Bay
Master Fund Ltd., has voting and investment power over these securities. Sander Gerber is the managing
member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP.
Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial ownership over these securities.
The address of the selling stockholder is c/o Hudson Bay Capital Management LP, 28 Havemeyer Place, Greenwich,
CT 06830.
|
(3)
|
This column lists the number of shares of Common Stock beneficially owned
by the selling stockholder, as of December 27, 2021 after giving effect to the Maximum Percentage (as
defined in the paragraph above). Without regard to the Maximum Percentage as of the start of December
27, 2021, our Common Stock beneficially owned by the selling stockholder consists of (i) 1,489,512 shares
of Common Stock previously acquired, none of which shares are being registered for resale under this
prospectus; (ii) up to 6,666,668 shares of Common Stock underlying a Series A Warrant, currently exercisable,
at a price of $1.50 per share, all of which shares are being registered for resale under this prospectus;
(iii) up to 1,533,334 shares of Common Stock issuable upon exercise of a Series B Warrant, currently
exercisable, at a price of $1.50 per share, none of which shares are being registered for resale under
this prospectus; and (iv) up to 15,625,000 shares of Common Stock underlying a Series D Warrant, currently
exercisable, at a price of $2.00, all of which shares are being registered for resale under this prospectus.
|
PLAN OF DISTRIBUTION
We are registering the shares of common stock
issuable upon exercise of the warrants to permit the resale of these shares of common stock by the holders of the warrants from time
to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the shares
of common stock. We will bear all fees and expenses incident to our obligation to register the shares of common stock.
The selling stockholders may sell all or a portion
of the shares of common stock held by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers
or agents. If the shares of common stock are sold through underwriters or broker-dealers, the selling stockholders will be responsible
for underwriting discounts or commissions or agent's commissions. The shares of common stock may be sold in one or more transactions
at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated
prices. These sales may be effected in transactions, which may involve crosses or block transactions, pursuant to one or more of the
following methods:
|
·
|
on
any national securities exchange or quotation service on which the securities may be listed
or quoted at the time of sale;
|
|
·
|
in
the over-the-counter market;
|
|
·
|
in
transactions otherwise than on these exchanges or systems or in the over-the-counter market;
|
|
·
|
through
the writing or settlement of options, whether such options are listed on an options exchange
or otherwise;
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares as agent but may position
and resell a portion of the block as principal to facilitate the transaction;
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable exchange;
|
|
·
|
privately
negotiated transactions;
|
|
·
|
short
sales made after the date the Registration Statement is declared effective by the SEC;
|
|
·
|
broker-dealers
may agree with the selling securityholders to sell a specified number of such shares at a
stipulated price per share;
|
|
·
|
a
combination of any such methods of sale; and
|
|
·
|
any
other method permitted pursuant to applicable law.
|
The selling stockholders may also sell shares
of common stock under Rule 144 promulgated under the Securities Act of 1933, as amended, if available, rather than under this prospectus.
In addition, the selling stockholders may transfer the shares of common stock by other means not described in this prospectus. If the
selling stockholders effect such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents,
such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling
stockholders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as
principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved). In connection with sales of the shares of common stock or otherwise, the selling stockholders
may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of common stock in the
course of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and deliver shares of
common stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales.
The selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares.
The selling stockholders may pledge or grant
a security interest in some or all of the warrants or shares of common stock owned by them and, if they default in the performance of
their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time pursuant to
this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the 1933 Act, amending, if
necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders
under this prospectus. The selling stockholders also may transfer and donate the shares of common stock in other circumstances in which
case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The selling stockholders and any broker-dealer
participating in the distribution of the shares of common stock may be deemed to be "underwriters" within the meaning of the
1933 Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting
commissions or discounts under the 1933 Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement,
if required, will be distributed which will set forth the aggregate amount of shares of common stock being offered and the terms of the
offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation
from the selling stockholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the
shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states
the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.
There can be no assurance that any selling stockholder
will sell any or all of the shares of common stock registered pursuant to the registration statement, of which this prospectus forms
a part.
The selling stockholders and any other person
participating in such distribution will be subject to applicable provisions of the 1934 Act, and the rules and regulations thereunder,
including, without limitation, Regulation M of the 1934 Act, which may limit the timing of purchases and sales of any of the shares of
common stock by the selling stockholders and any other participating person. Regulation M may also restrict the ability of any person
engaged in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common
stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage
in market-making activities with respect to the shares of common stock.
We will pay all expenses of the registration
of the shares of common stock pursuant to the registration rights agreement, estimated to be $883.75 in total, including, without limitation,
Securities and Exchange Commission filing fees and expenses of compliance with state securities or "blue sky" laws; provided,
however, that a selling stockholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling
stockholders against liabilities, including some liabilities under the 1933 Act, in accordance with the registration rights agreements,
or the selling stockholders will be entitled to contribution. We may be indemnified by the selling stockholders against civil liabilities,
including liabilities under the 1933 Act, that may arise from any written information furnished to us by the selling stockholder specifically
for use in this prospectus, in accordance with the related registration rights agreement, or we may be entitled to contribution.
Once sold under the registration statement, of
which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates.
DESCRIPTION OF SECURITIES
TO BE REGISTERED
General
The total number of shares of all classes of
capital stock which the Corporation shall have authority to issue is 505,000,000, of which 500,000,000 shares shall be Common Stock of
the par value of $0.0001 per share and 5,000,000 shares shall be Preferred Stock of the par value of $0.0001 per share.
Common Stock
Holders of Common Stock are entitled to one vote
per share. AVCT’s certificate of incorporation, as amended and restated, does not provide for cumulative voting. Holders of Common
Stock are entitled to receive ratably such dividends, if any, as may be declared by the board of directors out of legally available funds.
Upon liquidation, dissolution or winding-up, the holders of Common Stock are entitled to share ratably in all of AVCT’s assets
which are legally available for distribution, after payment of or provision for all liabilities and the liquidation preference of any
outstanding preferred stock. The holders of Common Stock have no preemptive, subscription, redemption or conversion rights.
Transfer Agent and Registrar for Common Stock
The current transfer agent and registrar for
AVCT is Continental Stock Transfer & Trust Company, located at 1 State Street, 30th Floor, New York, NY 10004.
Listing
AVCT Common Stock is listed on Nasdaq under the
symbol “AVCT”.
INDEMNIFICATION FOR SECURITIES
ACT LIABILITIES
Section 145 of the Delaware General Corporation
Law, or Delaware law, inter alia, empowers a Delaware corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
Similar indemnity is authorized for such persons against expenses (including attorneys’ fees) actually and reasonably incurred
in connection with the defense or settlement of any such threatened, pending or completed action or suit if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and provided further that
(unless a court of competent jurisdiction otherwise provides) such person shall not have been adjudged liable to the corporation. Any
such indemnification may be made only as authorized in each specific case upon a determination by the stockholders or disinterested directors
or by independent legal counsel in a written opinion that indemnification is proper because the indemnitee has met the applicable standard
of conduct.
Section 145 further authorizes a corporation
to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against
any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145. We maintain policies insuring our officers and directors
against certain liabilities for actions taken in such capacities, including liabilities under the Securities Act.
Our certificate of incorporation and bylaws require
us to indemnify our directors to the fullest extent permitted under Delaware law or any other applicable law in effect, but if such statute
or law is amended, we may change the standard of indemnification only to the extent that such amended statute or law permits us to provide
broader indemnification rights to our directors. We must indemnify such officers and employees in the same manner and to the same extent
that we are required to indemnify our directors under our certificate of incorporation and bylaws. Our certificate of incorporation limits
the personal liability of a director to us or our stockholders to damages for breach of the director’s fiduciary duty. Pursuant
to indemnification agreements we entered into with each of our directors, we are further required to indemnify our directors to the fullest
extent permitted under Delaware law and our bylaws; provided that each such director shall enjoy the greater of (i) the advancement and
indemnification rights permitted under our certificate of incorporation and bylaws for directors and officers as of the date of such
indemnification agreement or (ii) the benefits so afforded by amendments thereto.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing
provisions, or otherwise, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable.
LEGAL MATTERS
The validity of the securities offered by this
prospectus were passed upon for us by Greenberg Traurig, LLP.
EXPERTS
The consolidated financial statements of AVCT
as of December 31, 2020, and for each of the periods in the two-year period ended December 31, 2020, have been incorporated by reference
herein in reliance upon the report of UHY LLP (“UHY”), an independent registered public accounting firm, incorporated by
reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL
INFORMATION
We file annual, quarter and periodic reports,
proxy statements and other information with the Securities and Exchange Commission using the Commission’s EDGAR system. The Commission
maintains a web site that contains reports, proxy and information statements and other information regarding registrants that file electronically
with the Commission. The address of such site is http//www.sec.gov.
We have filed a registration statement with the
Commission relating to the offering of the shares. The registration statement contains information which is not included in this prospectus.
You may inspect or copy the registration statement at the Commission’s public reference facilities or its website.
You should rely only on the information contained
in this prospectus. We have not authorized any person to provide you with any information that is different.
INCORPORATION OF DOCUMENTS
BY REFERENCE
We are “incorporating by reference”
in this prospectus certain documents we file with the SEC, which means that we can disclose important information to you by referring
you to those documents. The information in the documents incorporated by reference is considered to be part of this prospectus.
Statements contained in documents that we file with the SEC and that are incorporated by reference in this prospectus will automatically
update and supersede information contained in this prospectus, including information in previously filed documents or reports that have
been incorporated by reference in this prospectus, to the extent the new information differs from or is inconsistent with the old information.
We have filed or may file the following documents with the SEC and they are incorporated herein by reference as of their respective dates
of filing.
1. our Annual Report
on Form 10-K for the fiscal
year ended December 31, 2020, filed with the SEC on March 31, 2021, as amended;
2. our Quarterly Report
on Form 10-Q for
the nine months ended September 30, 2021, filed with the SEC on November 12, 2021;
3. our Current Reports
on Form 8-K filed with the SEC on January
21, 2021; January 27, 2021;
February 12, 2021; March
5, 2021; April 7, 2021;
April 9, 2021; May
12, 2021; June 25, 2021;
July 22, 2021; September
3, 2021; September 17,
2021; October 6, 2021;
November 3, 2021; November
8, 2021; December 3, 2021;
December 7, 2021;
December 9, 2021;
December 13, 2021;
December 16, 2021;
and December 29, 2021;
4. the description
of our Common Stock set forth in the registration statement on Form
8-A registering our Common Stock under Section 12 of the Exchange Act, which was filed with the SEC on July 26, 2017, including any
amendments or reports filed for purposes of updating such description.
All documents that we filed with the SEC pursuant
to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act subsequent to 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 under this prospectus have been
sold, or that deregisters all securities then remaining unsold, will be deemed to be incorporated in this registration statement by reference
and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated
or deemed to be incorporated by reference in this prospectus shall be deemed modified, superseded or replaced for purposes of this prospectus
to the extent that a statement contained in this prospectus, or in any subsequently filed document that also is deemed to be incorporated
by reference in this prospectus, modifies, supersedes or replaces such statement. Any statement so modified, superseded or replaced shall
not be deemed, except as so modified, superseded or replaced, to constitute a part of this prospectus. None of the information that we
disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K or any corresponding information, either furnished under Item 9.01
or included as an exhibit therein, that we may from time to time furnish to the SEC will be incorporated by reference into, or otherwise
included in, this prospectus, except as otherwise expressly set forth in the relevant document. Subject to the foregoing, all information
appearing in this prospectus is qualified in its entirety by the information appearing in the documents incorporated by reference.
You may request, orally or in writing, a copy
of these documents, which will be provided to you at no cost (other than exhibits, unless such exhibits are specifically incorporate
by reference), by contacting our Controller, at American Virtual Cloud Technologies, Inc., 1720 Peachtree Street, Suite 629, Atlanta,
GA 30309, or by telephone at (404) 239-2863. Information about us is also available at our website at www.avctechnologies.com. However,
the information in our website is not a part of this prospectus and is not incorporated by reference.
American Virtual Cloud Technologies
37,916,668 Shares of Common Stock
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The Company is paying all expenses of the offering.
No portion of these expenses will be borne by the selling security holder. The selling security holder, however, will pay any other expenses
incurred in selling its common stock, including any brokerage commissions or costs of sale. Following is an itemized statement
of all expenses in connection with this registration statement. All of the amounts shown are estimates, except for the SEC Registration
Fees.
SEC registration fee
|
|
$
|
6,010.44
|
|
Printing
|
|
|
*
|
|
Legal fees and expenses
|
|
$
|
*
|
|
Accounting fees and expenses
|
|
$
|
*
|
|
Miscellaneous
|
|
|
*
|
|
Total
|
|
$
|
*
|
|
*
|
These fees are calculated
based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. The applicable prospectus
supplement will set forth the estimated amount of expenses of any offering of securities.
|
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation
Law, or Delaware law, inter alia, empowers a Delaware corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
Similar indemnity is authorized for such persons against expenses (including attorneys’ fees) actually and reasonably incurred
in connection with the defense or settlement of any such threatened, pending or completed action or suit if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and provided further that
(unless a court of competent jurisdiction otherwise provides) such person shall not have been adjudged liable to the corporation. Any
such indemnification may be made only as authorized in each specific case upon a determination by the stockholders or disinterested directors
or by independent legal counsel in a written opinion that indemnification is proper because the indemnitee has met the applicable standard
of conduct.
Section 145 further authorizes a corporation
to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against
any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145. We maintain policies insuring our officers and directors
against certain liabilities for actions taken in such capacities, including liabilities under the Securities Act.
Our certificate of incorporation and bylaws require
us to indemnify our directors to the fullest extent permitted under Delaware law or any other applicable law in effect, but if such statute
or law is amended, we may change the standard of indemnification only to the extent that such amended statute or law permits us to provide
broader indemnification rights to our directors. We must indemnify such officers and employees in the same manner and to the same extent
that we are required to indemnify our directors under our certificate of incorporation and bylaws. Our certificate of incorporation limits
the personal liability of a director to us or our stockholders to damages for breach of the director’s fiduciary duty. Pursuant
to indemnification agreements we entered into with each of our directors, we are further required to indemnify our directors to the fullest
extent permitted under Delaware law and our bylaws; provided that each such director shall enjoy the greater of (i) the advancement and
indemnification rights permitted under our certificate of incorporation and bylaws for directors and officers as of the date of such
indemnification agreement or (ii) the benefits so afforded by amendments thereto.
Item 16. Exhibits.
Exhibit
Number
|
|
Description
of Document
|
|
|
|
3.1(1)
|
|
Amended
and Restated Certificate of Incorporation.
|
3.2(2)
|
|
Amended
and Restated Bylaws.
|
3.3(3)
|
|
Second
Amended and Restated Certificate of Incorporation.
|
4.1(4)
|
|
Series
A Warrant, dated November 5, 2021
|
4.2(4)
|
|
Series
B Warrant, dated November 5, 2021
|
4.3(5)
|
|
Series
C Warrant, dated December 2, 2021
|
4.4(6)
|
|
Series D Warrant,
dated December 15, 2021
|
4.5(7)
|
|
Specimen
Common Stock Certificate
|
5.1
|
|
Opinion of
Greenberg Traurig, LLP*
|
10.1(8)
|
|
Securities
Purchase Agreement, dated as of November 2, 2021
|
10.2(4)
|
|
Registration
Rights Agreement, dated November 5, 2021
|
10.3(5)
|
|
Credit
Agreement, dated December 2, 2021
|
10.4(5)
|
|
Amendment
and Waiver, dated December 2, 2021
|
23.1
|
|
Consent of
UHY, LLP *
|
23.2
|
|
Consent of
Greenberg Traurig, LLP (included in Exhibit 5.1)*
|
24.1
|
|
Power of Attorney (included in Part
II of this Registration Statement)
|
(1)
|
Incorporated by reference
to an exhibit to the Company’s current report on Form 8-K filed with the SEC on April 30, 2019.
|
(2)
|
Incorporated by reference
to an exhibit to the Company’s current report on Form 8-K filed with the SEC on August 2, 2017.
|
(3)
|
Incorporated by reference
to an exhibit to the Company’s current report on Form 8-K filed with the SEC on April 7, 2020.
|
(4)
|
Incorporated by reference
to an exhibit to the Company’s current report on Form 8-K filed with the SEC on November 8, 2021.
|
(5)
|
Incorporated by reference
to an exhibit to the Company’s current report on Form 8-K filed with the SEC on December 3, 2021.
|
(6)
|
Incorporated by reference
to an exhibit to the Company’s current report on Form 8-K filed with the SEC on December 16, 2021.
|
(7)
|
Incorporated by reference
to an exhibit to the Company’s Form S-1 filed with the SEC on April 29, 2020.
|
(8)
|
Incorporated by reference
to an exhibit to the Company’s current report on Form 8-K filed with the SEC on November 3, 2021.
|
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period
in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933;
(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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii) to include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however,
that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose
of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose
of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the registrant is
relying on Rule 430B:
(A) Each prospectus filed
by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(B) Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date; or
(ii) If the registrant
is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other
than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part
of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose
of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities,
the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The portion
of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
(iv) Any other
communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) The undersigned registrant
hereby undertakes that, for purposes of determining any liability of the registrant under the Securities Act of 1933, each filing of
the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration 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.
(7) The undersigned registrant
hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription
offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by
the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms
differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of
such offering.
(8) Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed
by the final adjudication of such issue.
(9) The undersigned registrant
hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Atlanta, State of Georgia, on this 29th day of December, 2021.
|
American Virtual Cloud Technologies,
Inc.
|
|
|
|
/s/
Darrell Mays
|
|
Name:
|
Darrell Mays
|
|
Title:
|
Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below does hereby constitute and appoint Darrell Mays and Thomas H. King and each of them, with full
power of substitution, such person’s true and lawful attorneys-in-fact and agents for such person, with full power and authority
to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine
may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting
the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned
officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective
and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be
signed in several counterparts.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant in the capacities
and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Lawrence E. Mock, Jr.
|
|
Chairman of the Board
|
|
December 29, 2021
|
Lawrence E. Mock, Jr.
|
|
|
|
|
|
|
|
|
|
/s/ Robert Willis
|
|
Vice Chairman
|
|
December 29, 2021
|
Robert Willis
|
|
|
|
|
|
|
|
|
|
/s/ Darrell Mays
|
|
Chief Executive Officer
|
|
December 29, 2021
|
Darrell Mays
|
|
|
|
|
|
|
|
|
|
/s/ Thomas H. King
|
|
Chief Financial Officer
|
|
December 29, 2021
|
Thomas H. King
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
|
Mark Downs
|
|
|
|
|
|
|
|
|
|
/s/ U. Bertram Ellis, Jr.
|
|
Director
|
|
December 29, 2021
|
U. Bertram Ellis, Jr.
|
|
|
|
|
|
|
|
|
|
/s/ Carolyn Byrd
|
|
Director
|
|
December 29, 2021
|
Carolyn Byrd
|
|
|
|
|
|
|
|
|
|
/s/ Karl Krapek
|
|
Director
|
|
December 29, 2021
|
Karl Krapek
|
|
|
|
|
|
|
|
|
|
/s/ Dennis Lockhart
|
|
Director
|
|
December 29, 2021
|
Dennis Lockhart
|
|
|
|
|
|
|
|
|
|
/s/ Dr. Klaas Baks
|
|
Director
|
|
December 29, 2021
|
Dr. Klaas Baks
|
|
|
|
|
|
|
|
|
|
/s/ Kent Mathy
|
|
Director
|
|
December 29, 2021
|
Kent Mathy
|
|
|
|
|
II-5
American Virtual Cloud T... (NASDAQ:AVCT)
Historical Stock Chart
From Feb 2024 to Mar 2024
American Virtual Cloud T... (NASDAQ:AVCT)
Historical Stock Chart
From Mar 2023 to Mar 2024