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 NOVEMBER 17, 2022
Prospectus
American Virtual Cloud Technologies, Inc.
10,000,000 Shares of Common Stock
This prospectus relates to the resale by the selling
stockholders named herein, from time to time, of up to an aggregate of 10,000,000 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 shares of Common Stock offered for sale by such selling stockholders consist of shares of Common Stock
issuable upon exercise of warrants we issued in a private placement pursuant to the Securities Purchase Agreement, dated as of October
18, 2022, by and between AVCT and the selling stockholders (the “Purchase Agreement”).
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 pursuant to the Purchase Agreement. 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
8. 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 November 15, 2022 was $1.00 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 April 15, 2022, 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 November , 2022
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 (the “SEC”). The following discussion should be read
in conjunction with the financial statements for the fiscal years ended December 31, 2021 and 2020 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
and therein. In particular, attention should be directed to our “Risk Factors,” “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.
All share numbers in this summary have been
adjusted to give effect to the Reverse Stock Split (as defined below).
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. (“Ribbon”) and certain of its affiliates, by acquiring certain assets, assuming certain liabilities and acquiring all
of the outstanding membership interests of Kandy Communications LLC, pursuant to an Amended and Restated Purchase Agreement, dated as
of December 1, 2020 (the “Kandy Purchase Agreement”).
On January 26, 2022, we and certain of our subsidiaries
(the “Companies”) entered into an asset purchase agreement (the “Asset Sale Agreement”) with Calian Corp. (“Calian”),
pursuant to which the Companies agreed to sell substantially all of the assets that constitute the Computex business, to Calian, in consideration
for a purchase price of $30 million in cash, subject to certain adjustments, and the assumption by Calian of certain liabilities relating
to the assets to be purchased (the “Asset Sale”). On March 15, 2022, the Company completed the Asset Sale to Calian pursuant
to the terms of the Asset Sale Agreement, for a purchase price of approximately $34 million, after giving effect to an adjustment for
estimated net working capital of Computex as of the closing. Under the terms of the Asset Sale Agreement, the Company retained certain
specified assets, including cash. The Company retained the assets comprising its Kandy Business.
Recent Developments
On August 2, 2022, the
Company reported that it had received a letter from the Listing Qualifications Staff of The Nasdaq Stock Market LLC indicating that, based
upon the Company’s Minimum Value of Listed Securities (“MVLS”) for the last 30 consecutive business days, the Company
was not then in compliance with the requirement to maintain a minimum of $35 million of MVLS required for continued listing on The Nasdaq
Capital Market, as set forth in Nasdaq Listing Rule 5550(b)(2).
On August 25, 2022, the
Company announced that it had retained Northland Capital Markets to advise the Company in connection with a comprehensive strategic review
process that could lead to the sale of the Company or selected assets. No assurance can be given that the Company’s review of strategic
alternatives will result in one or more transactions being entered into or consummated, or if any transaction is undertaken, as to its
terms, structure or timing of such transaction. Furthermore, any ultimate sale transaction(s), if any, may require a shareholder or judicial
approval process that may or may not result in such approval being obtained.
On August 29, 2022, the
Company and its subsidiary, AVCtechnologies USA, Inc. (“AVCT USA”), entered into a Settlement Agreement (the “Settlement
Agreement”) with Ribbon, Ribbon Communications Canada, ULC (“Ribbon Canada”) and Ribbon Communications Operating Company,
Inc. (“RCOCI” and, together with Ribbon and Ribbon Canada, the “Ribbon Parties”). Pursuant to the Settlement Agreement,
the Company and the Ribbon Parties modified and/or terminated certain agreements that had been entered into between them in connection
with the consummation of the transactions contemplated by the Kandy Purchase Agreement and settled certain disputes that had arisen between
them under certain of such agreements.
In particular, pursuant
to the Settlement Agreement, AVCT USA and RCOCI entered into a Wind Down Agreement (the “Wind Down Agreement”), pursuant to
which a Reseller Agreement between the parties, as previously amended, was terminated, and the Company granted RCOCI certain non-exclusive
perpetual rights to use certain intellectual property owned by the Company comprising certain WebRTC gateway technology that is integrated
with Ribbon’s SBCs and Application Servers (the “Licensed Technology Rights”). In consideration of the resolution of
the disputes between the parties encompassed within the Settlement Agreement, among other things, (i) RCOCI paid the Company $2.5 million
in cash, (ii) pursuant to a Stock Redemption Agreement (the “Redemption Agreement”), the 913,361 shares of the Company’s
Common Stock, issued to Ribbon pursuant to the Kandy Purchase Agreement were redeemed by the Company for no further consideration and
were canceled, and (iii) pursuant to a Warrant Termination Agreement (the “Warrant Termination Agreement”), the Warrants exercisable
to purchase 291,853 shares of Common Stock issued to Ribbon pursuant to the Kandy Purchase Agreement were terminated and canceled. In
addition, the Company and certain of the Ribbon Parties entered into amendments to agreements pursuant to which the Company (i) subleases
and/or licenses certain premises from the Ribbon Parties, in order to, among other things, reduce the portion of the premises used by
the Company (and the corresponding rent or other fees payable), and (ii) purchases and/or licenses certain hardware, software, products
and related services from the Ribbon Parties, in order to, among other things, amend the license fee structure from a bulked fixed pricing
schedule to a variable rate pricing structure so as to reduce the fees payable by the Company.
On September 26, 2022,
the Company and the holders of the senior secured convertible note issued by the Company in April 2022 (the “Note”), Series
A Warrants issued in November 2021, Series D Warrants issued in December 2021 and the Warrants issued pursuant to a Securities Purchase
Agreement dated as of February 28, 2022 (all such Warrants collectively, the “Existing Warrants”), entered into a Settlement
Agreement (the “Settlement Agreement”). Pursuant to the Settlement Agreement, the parties thereto agreed, among other things,
to effect, on the date of the Settlement Agreement, a series of sequential transactions consisting of one or more exercises of certain
of the Existing Warrants, each followed by an exchange, in reliance on the exemption from registration provided by Section 3(a)(9) of
the Securities Act, of the shares of the Company’s Common Stock, into rights (the “New Rights”) to acquire an aggregate
of 6,186,642 shares of Common Stock (the “New Rights Shares” and, collectively with the 480,024 shares of Common Stock into
which the remaining principal amount of the Note were then convertible, the “New Shares”) of Common Stock. Upon the issuance
of the New Rights pursuant to the Settlement Agreement, such holders had no further right to exercise the Existing Warrants, all of which
were canceled and terminated.
Pursuant to the Settlement
Agreement, the holders agreed to release any liens and security interests granted to the holders in connection with the issuance of the
Note, effective upon the earlier of the issuance of all the New Shares, or the first date on or after October 6, 2022 on which the Company
has issued all of the New Shares as to which the holders have properly delivered a notice of conversion or notice of exercise, as applicable,
on or before October 5, 2022 (such date, the “Lien Release Date”). The Settlement Agreement also contains mutual releases
by each of the parties, other than with respect to the right to enforce certain provisions of the Settlement Agreement.
On September 30, 2022, the Company filed a Certificate
of Amendment of the Company’s Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware
(the “Certificate of Amendment”), which effected, upon filing on September 30, 2022 (the “Effective Time”), a
one-for-fifteen reverse stock split (the “Reverse Stock Split”) of the Company’s issued and outstanding shares of Common
Stock. On October 3, 2022, the Common Stock began trading on a Reverse Stock Split-adjusted basis.
As of October 6, 2022, all of the shares of Common
Stock issuable pursuant to the terms of the Settlement Agreement had been issued in accordance with the terms of the Settlement Agreement.
As a result, the Note has been satisfied in full, and all liens and security interests granted to the holders of the Note have been terminated
and released. In addition, as previously reported, the Existing Warrants have been canceled and terminated.
In support of its ongoing strategic, operating
and capital restructuring initiatives the Company has incurred increased expenses associated with non-recurring items related to legal,
operating, and financial advisory professional fee expenses. The Company anticipates that it will need additional capital to fund its
current operations including research and development and capital investment requirements until the Company scales to a revenue level
that generates cash self-sufficiency. As a result, the Company needs to raise additional capital or secure debt funding to support on-going
operations until such time. Any of the foregoing may not be available on favorable terms, if at all.
On October 18, 2022, the Company entered into
the Purchase Agreement with two institutional accredited investors (each, a “Purchaser,” and collectively, the “Purchasers”),
relating to the issuance and sale of (i) an aggregate of 5,000,000 shares of the Company’s Common Stock, in a registered direct
offering, and (ii) warrants to purchase up to an aggregate of 10,000,000 shares of Common Stock (the “ Purchasers’ Warrants”),
in a concurrent private placement (the “Private Placement”), for an aggregate purchase price of $10,000,000, before deducting
placement agent fees and other offering expenses. On October 20, 2022, the Company consummated the transactions contemplated by the Purchase
Agreement. Pursuant to the terms of the Purchase Agreement, the Company was required to file, within 30 days of the date of the Purchase
Agreement, this registration statement to register the resale of the shares of Common Stock issuable upon exercise of the Purchasers’
Warrants.
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 supplement and is not incorporated in any manner into this prospectus supplement.
The Offering
The selling stockholders named in this prospectus
may offer and sell up to an aggregate of 10,000,000 shares of Common Stock, representing the maximum number of shares of Common Stock
issuable upon exercise of the Purchasers’ Warrants (without taking into account any limitations on the exercise of the Purchasers’
Warrants set forth in the Purchasers’ Warrants).
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 of Common Stock 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: |
10,000,000 shares |
|
|
Common stock outstanding: |
32,470,006 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: |
Our Common Stock is listed on the Nasdaq Capital Market under the symbol AVCT. On November 15, 2022 the last reported sale price of our Common Stock was $1.00 per share. |
|
|
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. |
Unless we indicate otherwise, all information
in this prospectus is based on 32,470,006 shares of Common Stock outstanding as of November 15, 2022, and excludes, as of that date:
|
● |
Approximately 75,531 shares of our Common Stock issuable upon the exercise of outstanding warrants with an exercise price of $0.15 per share; |
|
● |
Approximately 1,735,835 shares of our Common Stock issuable upon the exercise of outstanding warrants with an exercise price of $172.50 per share; |
|
● |
1,062,474 shares of our Common Stock underlying warrants issued on December 2, 2021 to certain funds affiliated with Monroe Capital Management Advisors, LLC with an exercise price of $0.0015 per share; |
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● |
Approximately 198,739 shares of our Common Stock issuable upon the vesting of restricted stock units; and |
|
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|
|
● |
The 10,000,000 shares of our Common Stock underlying the Purchasers’ Warrants, with an exercise price of $1.80 per share. |
RISK FACTORS
Investing in our securities involves substantial
risks. In addition to other information contained in this prospectus and in any accompanying prospectus supplement, before investing in
our securities, you should carefully consider the risks described under the heading “Risk Factors” in our most recent Annual
Report on Form 10-K and Quarterly Report on Form 10-Q and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K
and in any other documents incorporated by reference into this prospectus, as updated by our future filings. These risks are not the only
ones faced by us. Additional risks not known or that are deemed immaterial could also materially and adversely affect our financial condition,
results of operations, our products, business and prospects. Any of these risks might cause you to lose all or a part of your investment.
Risks Related to this Offering
The number of shares being registered for
resale is significant in relation to the number of our outstanding shares of Common Stock.
We have filed a registration statement of which
this prospectus is a part to register the shares offered hereunder for sale into the public market by the selling stockholders. These
shares represent a large number of shares of our Common Stock, and if sold in the market all at once or at about the same time, could
depress the market price of our Common Stock during the period the registration statement remains effective and could also affect our
ability to raise equity capital.
The market price of our Common Stock has
been, and may continue to be, highly volatile, and such volatility could cause the market price of our Common Stock to decrease and could
cause you to lose some or all of your investment in our common stock.
Since our initial public offering in 2017, the market
price of our Common Stock has been highly volatile. The market price of our Common Stock may continue to fluctuate significantly in response
to numerous factors, some of which are beyond our control, such as:
| · | risks associated with our ongoing comprehensive strategic review process; |
| · | our need to obtain additional funding to continue as a going concern; |
| · | our ability to maintain the listing of our securities on the Nasdaq Capital Market; |
| · | our ability to retain a certain volume of customers, partner relationships and the ability of those partners to maintain the availability
of their products; |
| · | fluctuations in demand for the Company’s services and technologies; |
| · | risks associated with the protection of the Company’s intellectual property, and government policies and regulations, including,
but not limited to those affecting the Company’s industry; |
| · | our ability to hire and/or retain key sales personnel, key executive officers and other key personnel, and our ability to successfully
implement succession plans; |
| · | adverse effects of the novel coronavirus (COVID-19) on the Company and/or the economy in general; and |
| · | changes in applicable laws or regulations. |
Further, the stock market in general, and the
market for our industries, has recently experienced extreme price and volume fluctuations. Continued market fluctuations could result
in extreme volatility in the price of our Common Stock, which could cause a decline in the value of our common stock and the loss of some
or all of your investment.
We may issue additional common stock resulting
in stock ownership dilution.
Future dilution may occur due to additional future
equity issuances and/or equity financing events by us, including any potential future restructuring of our outstanding indebtedness. In
addition, we may raise additional capital through the sale of equity or convertible debt securities, which would further dilute the ownership
interests of our stockholders. As of November 15, 2022, we had outstanding warrants to acquire 12,873,840 shares of our Common Stock,
and approximately 198,739 shares of our Common Stock will be issuable upon the vesting of restricted stock units. A significant number
of such warrants are out of the money, but the holders have the right to affect a cashless exercise of such warrants. If a significant
number of such warrants and stock options are exercised by the holders, the percentage of our Common Stock owned by our existing stockholders
will be diluted.
USE OF PROCEEDS
We will not receive any proceeds from the sale
of the Common Stock by the selling stockholders.
The holders of the Purchasers’ Warrants
are not obligated to exercise the Purchasers’ Warrants, and we cannot predict whether the holders of the Purchasers’ Warrants
will choose to exercise the Purchasers’ Warrants. If the Purchasers’ Warrants are exercised in full, we would receive gross
proceeds of $18,000,000. 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 stockholders 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 liquidity of our common stock.
SELLING STOCKHOLDERS
The shares of Common Stock being offered by the
selling stockholders are those issuable to the selling stockholders upon exercise of the Purchasers’ 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 Purchasers’
Warrants, 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 (the “1934 Act”), 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 November 15, 2022, assuming exercise of all warrants held by the selling stockholders on that
date, without regard to 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.
In accordance with the terms of the Purchase Agreement,
this prospectus generally covers the resale of the maximum number of shares of Common Stock issued or issuable upon exercise of the Purchasers’
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 Purchasers’ 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 of Common Stock offered by the selling stockholders pursuant to this prospectus.
Under the terms of the Purchasers’ Warrants,
a selling stockholder may not exercise the Purchasers’ 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 4.99% of our then outstanding
shares of Common Stock following such exercise, excluding for purposes of such determination shares of Common Stock issuable upon exercise
of the Purchasers’ Warrants which have not been exercised (the “Maximum Percentage”). The number of shares in the second
column does not reflect these limitations. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan
of Distribution.”
| |
Shares Beneficially Owned Prior to the Offering(1) | | |
Maximum Number of
Shares Being Offered Pursuant to this | | |
Shares Beneficially Owned After
Offering | |
Name of Selling Stockholder | |
Number | | |
Percent | | |
Prospectus | | |
Number | | |
Percent | |
Sabby Volatility Warrant Master Fund, Ltd.(2) | |
| 1,620,253 | (4) | |
| 4.99 | % | |
| 5,000,000 | | |
| 1,588,293 | | |
| 3.74 | % |
CVI Investments, Inc.(3) | |
| 1,620,253 | (5) | |
| 4.99 | % | |
| 5,000,000 | | |
| 0 | | |
| - | |
(1) |
Applicable percentage ownership is based on 32,470,006 shares of our common stock outstanding as of November 15, 2022 and based on 42,470,006 shares of our common stock outstanding after the offering. |
|
|
(2) |
Sabby Management, LLC is the investment manager of Sabby Volatility Warrant Master Fund, Ltd. (“SVWMF”) and shares voting and investment power with respect to these shares in this capacity. As manager of Sabby Management, LLC, Hal Mintz also shares voting and investment power on behalf of SVWMF. Each of Sabby Management, LLC and Hal Mintz disclaims beneficial ownership over the securities listed except to the extent of their pecuniary interest therein. |
|
|
(3) |
Heights Capital Management, Inc., the authorized agent of CVI Investments, Inc. ("CVI"), has discretionary authority to vote and dispose of the shares held by CVI and may be deemed to be the beneficial owner of these shares. Martin Kobinger, in his capacity as Investment Manager of Heights Capital Management, Inc., may also be deemed to have investment discretion and voting power over the shares held by CVI. Mr. Kobinger disclaims any such beneficial ownership of the shares. CVI Investments, Inc. is affiliated with one or more FINRA member, none of whom are currently expected to participate in the sale pursuant to the prospectus contained in the Registration Statement of Shares purchased by the Investor in this Offering. |
(4) |
This column lists the number of shares of Common
Stock beneficially owned by the selling stockholder, as of November 15, 2022 after giving effect to the Maximum Percentage (as defined
in the paragraph above). Without regard to the Maximum Percentage as of the start of November 15, 2021, our Common Stock beneficially
owned by the selling stockholder consists of (i) 1,588,293 shares of Common Stock previously acquired, none of which shares are being
registered for resale under this prospectus; and (ii) up to 5,000,000 shares of Common Stock underlying the Purchasers’ Warrants,
initially exercisable on December 4, 2022, at a price of $1.80 per share, all of which shares are being registered for resale under this
prospectus. |
(5) |
This column lists the number of shares of Common
Stock beneficially owned by the selling stockholder, as of November 15, 2022 after giving effect to the Maximum Percentage (as defined
in the paragraph above). Without regard to the Maximum Percentage as of the start of November 15, 2021, our Common Stock beneficially
owned by the selling stockholder consists of up to 5,000,000 shares of Common Stock underlying the Purchasers’ Warrants, initially
exercisable on December 4, 2022, at a price of $1.80 per share, 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 Purchasers’ Warrants to permit the resale of these shares of Common Stock by the holders of the Purchasers’
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 beneficially owned 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,
|
● |
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 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; |
|
● |
sales pursuant to Rule 144; |
|
● |
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. |
In addition, a selling stockholder that is an
entity may elect to make an in-kind distribution of securities to its members, partners or stockholders pursuant to the registration statement
of which this prospectus is a part by delivering a prospectus with a plan of distribution. Such members, partners or stockholders would
thereby receive freely tradeable securities pursuant to the distribution through a registration statement. To the extent a distributee
is an affiliate of ours (or to the extent otherwise required by law), we may file a prospectus supplement in order to permit the distributees
to use the prospectus to resell the securities acquired in the distribution.
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 Purchasers’ 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 Securities Act
of 1933 (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 Purchase Agreement, estimated to be $46,093.74 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 Purchase Agreement, 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 a selling stockholder specifically for use in this prospectus,
in accordance with the Purchase 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 Company 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’s 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 American
Virtual Cloud Technologies, Inc. as of December 31, 2021 and 2020, and for each of the years in the two-year period ended December 31,
2021, 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, quarterly 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, 2021, filed with the SEC on April 15, 2022, as amended;
2. our Quarterly Report on
Form 10-Q for the nine months ended September 30, 2022, filed with the SEC on November 14, 2022;
3. our Current Reports on
Form 8-K filed with the SEC on January 10, 2022; February 1, 2022; February 25, 2022; February 28, 2022; March 2, 2022; March 16, 2022;
April 15, 2022; April 25, 2022; May 25, 2022; August 2, 2022; August 25, 2022; September 1, 2022; September 1, 2022; September 8, 2022;
September 12, 2022, September 26, 2022, September 30, 2022; October 11, 2022; October 20, 2022 and October 25, 2022.
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, Inc.
10,000,000 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 stockholders. The selling stockholders, however, will pay any other expenses
incurred in selling its shares 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 | |
$ | 1,093.74 | |
Printing | |
| * | |
Legal fees and expenses | |
$ | 15,000 | |
Accounting fees and expenses | |
$ | 20,000 | |
Miscellaneous | |
| 10,000 | |
Total | |
$ | 46,093.74 | |
| * | 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.
| (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 September 30, 2022. |
| (5) | Incorporated by reference to an exhibit to the Company’s
current report on Form 8-K filed with the SEC on October 20, 2022. |
| (6) | Incorporated by reference to an exhibit to the Company’s
Form S-1 filed with the SEC on April 29, 2020. |
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 17th day of November, 2022.
|
American Virtual Cloud Technologies, Inc. |
|
|
|
/s/ Kevin Keough |
|
Name: |
Kevin Keough |
|
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 Kevin Keough and Adrian Foltz 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 |
|
November 17, 2022 |
Lawrence E. Mock, Jr. |
|
|
|
|
|
|
|
|
|
/s/ Darrell Mays |
|
Executive Vice Chairman of the Board |
|
November 17, 2022 |
Darrell Mays |
|
|
|
|
|
|
|
|
|
/s/ Robert Willis |
|
Vice Chairman |
|
November 17, 2022 |
Robert Willis |
|
|
|
|
|
|
|
|
|
/s/ Kevin Keough |
|
Chief Executive Officer |
|
November 17, 2022 |
Kevin Keough |
|
|
|
|
|
|
|
|
|
/s/ Adrian Foltz |
|
Chief Financial Officer |
|
November 17, 2022 |
Adrian Foltz |
|
|
|
|
|
|
|
|
|
/s/ Onex Evans |
|
Chief Accounting Officer |
|
November 17, 2022 |
Onex Evans |
|
|
|
|
|
|
|
|
|
/s/ Mark Downs |
|
Director |
|
November 17, 2022 |
Mark Downs |
|
|
|
|
|
|
|
|
|
/s/ U. Bertram Ellis, Jr. |
|
Director |
|
November 17, 2022 |
U. Bertram Ellis, Jr. |
|
|
|
|
|
|
|
|
|
/s/ Carolyn Byrd |
|
Director |
|
November 17, 2022 |
Carolyn Byrd |
|
|
|
|
|
|
|
|
|
/s/ Karl Krapek |
|
Director |
|
November 17, 2022 |
Karl Krapek |
|
|
|
|
|
|
|
|
|
/s/ Dr. Klaas Baks |
|
Director |
|
November 17, 2022 |
Dr. Klaas Baks |
|
|
|
|
|
|
|
|
|
/s/ Kent Mathy |
|
Director |
|
November 17, 2022 |
Kent Mathy |
|
|
|
|
/s/
Dennis Lockhart |
|
Director |
|
November 17,
2022 |
Dennis Lockhart |
|
|
|
|
II-5
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