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 MAY 19, 2022
Prospectus
American Virtual Cloud Technologies, Inc.
120,000,000 Shares of Common Stock
This prospectus relates to the resale by the selling
stockholders of up to an aggregate of 120,000,000 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 conversion of a senior
secured convertible note, in the original principal amount of $12,000,000, issued by the Company on April 19, 2022 (the “Note”),
pursuant to a securities purchase agreement, dated as of April 14, 2022 (the “Purchase Agreement”). The Note is convertible
into shares of Common Stock at the election of the holder at any time at an initial conversion price of $0.99 (the “Conversion Price”),
subject to customary adjustments as discussed in this prospectus. In accordance with the terms of a registration rights agreement with
the holder of the Note, dated as of April 19, 2022 (the “Registration Rights Agreement”), this prospectus generally covers
the resale of 100% of the maximum number of shares of Common Stock issued or issuable pursuant to the Note, determined as if the outstanding
Note were converted in full (without regard to any limitations on conversion contained therein solely for the purpose of such calculation)
at $0.10, the “Floor Price” of the Note (as defined in the Note), as of the trading day immediately preceding the date this
registration statement was initially filed with the SEC. Because the conversion price of the Note may be adjusted, and interest may accrue
on the Note if an Event of Default (as defined in the Note) occurs, the number of shares that will actually be issued may be more or less
than the number of shares being offered by this prospectus.
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 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 May 17, 2022 was $0.39 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 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 , 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, or 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.
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 January 26, 2022,
we and certain of our subsidiaries (the “Companies”) entered into an asset purchase agreement (the “Asset Purchase 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 February 28, 2022, the Company entered into
a securities purchase agreement (“February Purchase Agreement”) with the buyer identified on the signature page thereto (the
“Buyer”), for the purchase and sale of (i) an aggregate of up to 21,500 shares (the “Preferred Shares”) of the
Company’s newly-designated Series B convertible preferred stock (the “Series B Preferred”) with a stated value of $1,000
per share, initially convertible into up to 21,500,000 shares of the Company’s Common Stock, par value $0.0001 per share at a conversion
price of $1.00 per share, and (ii) warrants to purchase up to that number of shares of Common Stock equal to the number of shares of Common
Stock into which the shares of Series B Preferred actually sold pursuant to the February Purchase Agreement are initially convertible
(the “February Warrants”).
Pursuant to the February Purchase Agreement, an
aggregate of 16,125 shares of Series B Preferred, initially convertible into 16,125,000 shares of Common Stock, together with the February
Warrants, initially exercisable for 16,125,000 shares of Common Stock, were issued and sold at an initial closing (the “Initial
Closing”), and the remaining 5,375 Preferred Shares may be issued and sold in one or more subsequent closings (each, an “Additional
Closing”), in each case subject to certain closing conditions. The Company can require the Buyer to purchase the remaining 5,375
Preferred Shares at an Additional Closing if the Company’s stockholders approve the issuance of all securities issuable pursuant
to the February Purchase Agreement in compliance with the rules and regulations of the Nasdaq Capital Market within a specified period
of time after the Initial Closing, subject to certain other closing conditions (including certain equity conditions), and the Buyer can
require the Company to sell the remaining 5,375 Preferred Shares at one or more Additional Closings, subject to certain conditions. The
aggregate purchase price for the Preferred Share and the February Warrants sold in the Initial Closing was $15,000,000. The purchase price
for any Preferred Shares sold at an Additional Closing would be approximately $930 per share.
As a result of the issuance of the Preferred Shares
and the February Warrants, the exercise price of the Series A Warrant, Series B Warrant and Series D Warrant previously issued by the
Company to an affiliate of the Buyer was automatically adjusted to $1.00 (with a proportional increase to the number of shares of Common
Stock issuable upon exercise of such warrants). Pursuant to the February Purchase Agreement, such affiliate of the Buyer agreed to a limited
waiver solely with respect to the transactions contemplated by the February Purchase Agreement, such that the exercise price of such existing
warrants will not be reduced below $1.00 solely as a result of the transactions contemplated by the February Purchase Agreement.
The terms of the Series B Preferred are set forth
in the form of Certificate of Designations of the Series B Preferred (the “Certificate of Designations”). The Series B Preferred
is convertible into Common Stock at the election of the holder at any time at an initial conversion price of $1.00 (the “Series
B Conversion Price”). The Series B 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 Series B Conversion Price
(subject to certain exceptions). The Company is required to convert, subject to equity conditions, or at the Company’s option, redeem
(in whole or in part) the Preferred Shares in 12 equal monthly installments, commencing on April 1, 2022. No dividends are payable on
the Series B Preferred, except that holders of Preferred Shares would be entitled to receive any dividends paid on account of the Common
Stock, on an as-converted basis, and if a “Triggering Event” (as defined in the Certificate of Designations) occurs and is
continuing, dividends will accrue on each Preferred Share at a rate of 15% per annum. The holders of Preferred Shares have no voting rights
on account of the Series B Preferred, other than with respect to certain matters affecting the rights of the Series B Preferred.
The February Warrants have an exercise price of
$1.00 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). If additional Preferred
Shares are sold at one or more Additional Closings, the February Warrants will automatically adjust such that they are exercisable for,
in the aggregate, the total number of shares of Common Stock into which all Preferred Shares sold pursuant to the February Purchase Agreement
are convertible. The February Warrants are exercisable commencing on the date of issuance, and will expire five years from the date of
receipt of the stockholder approval.
At the special meeting of stockholders of the
Company held on March 14, 2022 (the “Special Meeting”), the Company’s stockholders approved proposals to (1) authorize
and approve the Asset Purchase Agreement, the Asset Sale and the other transactions contemplated by the Asset Purchase Agreement, (2)
approve, for purposes of complying with the Nasdaq Listing Rules, the issuance of shares of Common Stock upon exercise of the warrants
issued by the Company pursuant to the terms of a Securities Purchase Agreement, dated as of November 2, 2021, as amended by that certain
Amendment and Waiver dated as of December 2, 2021, in an amount equal to 20% or more of the Common Stock outstanding and (3) approve,
for purposes of complying with the Nasdaq Listing Rules, the issuance of shares of Common Stock upon exercise of warrants without giving
effect to any cap on the number of shares issuable upon exercise thereof, issued by the Company pursuant to the terms of a Subscription
Agreement, dated as of December 2, 2021.
On March 15, 2022, the Company completed the Asset
Sale and sold the Purchased Assets to Calian pursuant to the terms of the Asset Purchase Agreement, dated January 26, 2022, among the
Companies and Calian. As consideration for the Asset Purchased Assets, Calian paid a purchase price of approximately $34 million, after
giving effect to an adjustment for estimated net working capital of the Computex as of the closing, which is subject to further adjustment
in the future based on actual net working capital, indebtedness and certain other matters as of the closing. Under the terms of the Asset
Purchase Agreement, the Company retained certain specified assets, including cash. The Company retained the assets comprising its Kandy
Business, which it intends to continue to operate, as described in the Company’s definitive proxy statement filed on February 14,
2022.
On April 19, 2022, the Company consummated the
closing (the “April Closing”) of the transactions contemplated by the Purchase Agreement. At the April Closing, the Company
issued and sold to the Note an institutional investor (the “Noteholder”) for a purchase price of $10,000,000. No interest
will accrue under the Note unless an Event of Default (as defined in the Note) has occurred and is continuing, at which time interest
would accrue at the rate of 15% per annum, compounding monthly. The Note is convertible into Common Stock of the Company at the election
of the holder at any time at the Conversion Price, initially at $0.99 per share. 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). The Company will be required to redeem $800,000 of the outstanding
amounts under the Note on a monthly basis, commencing on August 1, 2022, until the maturity date of October 1, 2023, on which date all
amounts that remain outstanding will be due and payable in full. Subject to certain conditions, including certain equity conditions, the
Company may pay the amount due on each monthly redemption date, and the final amount due at maturity, either in cash, shares of Common
Stock or a combination. The number of shares used to pay any portion of the Note in such event would be calculated as 88% of the lowest
daily volume weighted average price of the Common Stock during the eight trading days immediately prior to the payment date. The Note
may not be prepaid by the Company, other than as specifically permitted by the Note.
The Note ranks senior to all outstanding and future
indebtedness of the Company and its Subsidiaries (as defined in the Purchase Agreement), and is secured by a first priority perfected
security interest in all of the existing and future assets of the Company and each Grantor (as defined in the Security Agreement defined
below), including a pledge of all of the capital stock of each of the Grantors (other than the Excluded Collateral, as defined in the
Security Agreement), as evidenced by (i) a security and pledge agreement entered into at the April Closing (the “Security Agreement”),
(ii) account control agreements entered into at the April Closing with respect to certain accounts described in the Note and the Security
Agreement, and (iii) a guaranty executed by certain subsidiaries of the Company pursuant to which each of them has agreed to guaranty
the obligations of the Company under the Note and the other Transaction Documents (as defined in the Purchase Agreement).
Also at the April Closing,
the Company entered into the Registration Rights Agreement with the Noteholder. 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 April Closing a registration statement covering the
resale of the shares of Common Stock issuable upon exercise of the Note (the “Registrable Securities”), 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 April 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
will be obligated to pay to the Noteholder an amount in cash equal to 1% of the original principal amount of the Note until the applicable
event giving rise to such payments is cured, subject to a cap of 10% of the original principal amount of the Note. The Registration Rights
Agreement also provides that the Company is obligated to file additional registration statements under certain circumstances, and provides
the Noteholder with customary “piggyback” registration rights.
Pursuant to the Purchase
Agreement, the Company agreed to seek the approval of its stockholders for the issuance of all shares of Common Stock issuable upon conversion
of the Note, in compliance with the rules of the Nasdaq Capital Market (the “Stockholder Approval”). In connection with such
agreement, the Company entered into voting agreements (the “April Voting Agreements”) with each of Navigation Capital Partners
SOF I, LLC (and an affiliated entity), Pensare Sponsor Group, LLC and Ribbon Communications Inc., each of which is a significant stockholder
of the Company (each, a “Significant Stockholder”). Pursuant to the April Voting Agreements, each Significant Stockholder
has agreed, with respect to all of the voting securities of the Company that such Significant Stockholder beneficially owns as of the
date thereof or thereafter, to vote in favor of the Stockholder Approval.
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
The selling stockholders named in this prospectus
may offer and sell up to an aggregate of 120,000,000 shares of Common Stock, representing 100% of the maximum number of shares of Common
Stock issued or issuable pursuant to the Note (assuming the full amount of the Note is converted into shares of Common Stock at the Floor
Price of $0.10 set forth in the Note and that no interest accrues under the Note, and without taking into account any limitations on the
conversion of the Note set forth in the Note).
Our shares of Common
Stock are 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: |
120,000,000 shares of Common Stock |
|
|
Common stock outstanding: |
94,160,909 shares of Common Stock |
|
|
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. |
Unless we indicate otherwise, all information
in this prospectus is based on 94,160,909 shares of Common Stock outstanding as of May 9, 2022, and excludes, as of that date:
|
● |
Approximately 5,510,675 shares of our Common Stock issuable upon the exercise of outstanding penny warrants; |
|
● |
Approximately 26,712,500 shares of our Common Stock issuable upon the exercise of outstanding warrants with an exercise price of $11.50 per share; |
|
● |
1,485,000 shares of our Common Stock issuable
upon the exercise of unit purchase options with an exercise price of $10.00 per share; |
|
● |
10,000,001 shares of our Common Stock underlying Series A Warrant with an exercise price of $1.00 per share; |
|
● |
4,966,060 shares of our Common Stock underlying warrants issued on December 2, 2021 to certain funds affiliated with Monroe Capital with an exercise price of $0.0001 per share; |
|
● |
31,250,000 shares of our Common Stock underlying the Series D Warrant with an exercise price of $1.00 per share; |
|
● |
Approximately 3,876,674 shares of our Common Stock issuable upon the vesting of restricted stock units; |
|
● |
Approximately 13,437,500 shares of
our Common Stock issuable upon conversion or redemption of the outstanding Series B Preferred shares; |
|
|
|
|
● |
16,125,000 shares of our Common Stock
issuable upon exercise of the February Warrants with an exercise price of $1.00 per share; and |
|
|
|
|
● |
The shares of our Common Stock issuable
upon conversion or redemption of the Note. |
RISK FACTORS
Investing in our securities
involves risks. You should carefully consider the risks, uncertainties and other factors described in our most recent Annual Report on
Form 10-K, as supplemented and updated by subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K that
we have filed or will file with the SEC, and in other documents which are incorporated by reference into this prospectus, as well as the
risk factors and other information contained in or incorporated by reference into any accompanying prospectus supplement before investing
in any of our securities. Our financial condition, results of operations or cash flows could be materially adversely affected by any of
these risks. The risks and uncertainties described in the documents incorporated by reference herein are not the only risks and uncertainties
that you may face.
For more information
about our SEC filings, please see “Where You Can Find More Information" and "Incorporation of Certain Information by Reference.”
Risks Related to the
Offering
Sales of substantial
amounts of our Common Stock by the Selling Stockholders, or the perception that these sales could occur, could adversely affect the price
of our Common Stock.
The sale by the selling
stockholders of a significant number of shares of Common Stock could have a material adverse effect on the market price of our Common
Stock. In addition, the perception in the public markets that the selling stockholders may sell all or a portion of their shares as a
result of the registration of such shares for resale pursuant to this prospectus could also in and of itself have a material adverse effect
on the market price of our Common Stock. We cannot predict the effect, if any, that market sales of those shares of Common Stock or the
availability of those shares of Common Stock for sale will have on the market price of our Common Stock.
USE OF PROCEEDS
We will not receive any proceeds from the sale
of the Common Stock by the selling stockholders.
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 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 conversion of the Note. For additional information regarding
the issuance of the Note, 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 Note, 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 held by each of the selling stockholders. The second
column lists the number of shares of Common Stock beneficially owned by the selling stockholders, based on their respective ownership
of shares of Common Stock and notes, as of May 11, 2022, assuming conversion of the Note held by each such selling stockholder on that
date but taking account of any limitations on conversion 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 in account any limitations on conversion of the notes set
forth therein.
In accordance with the terms of a registration
rights agreement with the holders of the Note, this prospectus generally covers the resale of 100% of the maximum number of shares of
Common Stock issued or issuable pursuant to the Note, determined as if the outstanding Note were converted in full (without regard to
any limitations on conversion contained therein solely for the purpose of such calculation) at $0.10, the floor price of the Note, as
of the trading day immediately preceding the date this registration statement was initially filed with the SEC. Because the conversion
price of the Note may be adjusted, and interest may accrue on the Note if an Event of Default (as defined in the Note) occurs, 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 Note, a selling stockholder
may not convert the notes to the extent (but only to the extent) such selling stockholder or any of its affiliates would beneficially
own a number of shares of our Common Stock which would exceed 9.99% of the outstanding 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 Stockholders | |
Shares Beneficially Owned Prior to the Offering(1) | | |
Maximum Number of Shares Being Offered Pursuant to this Prospectus | | |
Shares Beneficially Owned After Offering(5) | |
| |
Number | | |
Percent | | |
| | |
Number | | |
Percent | |
HB Sub Fund II LLC(2) | |
| 9,406,675 | (3) | |
| 9.99 | % | |
| 120,000,000 | (4) | |
| 0 | | |
| 0 | % |
| (1) | Applicable percentage ownership
is based on 94,160,909 shares of our Common Stock outstanding as of May 9, 2022 and based on 214,160,909 shares of our Common Stock
outstanding after the offering. |
| (2) | Hudson Bay Capital Management
LP, the investment manager of each of HB Sub Fund II LLC, HB Fund LLC and 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 HB Sub Fund II LLC, HB Fund LLC and Hudson Bay Master Fund Ltd., and Sander Gerber disclaims beneficial
ownership over these securities (other than such securities attributable to such entities as described in Footnote 3 below). 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 entities under common control with the selling stockholder, as of May 11, 2022 after giving
effect to the Maximum Percentage (as defined in the paragraph above). Without regard to the Maximum Percentage, as of May 11, 2022, the
selling stockholder (together with Hudson Bay Master Fund Ltd. and HB Fund LLC, which are under common control with the selling stockholder)
would beneficially own an aggregate number of 183,182,480 shares of our Common Stock consisting of (i) 120,000,000 shares of Common Stock
underlying the Note held by the selling stockholder, converted at the Floor Price of $0.10 per share, all of which are being registered
under this prospectus; (ii) 10,000,001 shares of Common Stock underlying Series A Warrant held by Hudson Bay Master Fund Ltd., currently
exercisable, at a price of $1.00 per share, none of which shares are being registered under this prospectus; (iii) 31,250,000 shares
of Common Stock underlying Series D Warrant held by Hudson Bay Master Fund Ltd., currently exercisable, at a price of $1.00 per share,
none of which shares are being registered under this prospectus; (iv) 16,125,000 shares of Common Stock underlying the February Warrants
held by HB Fund LLC, currently exercisable, at a price of $1.00 per share, none of which shares are being registered for resale under
this prospectus; (v) 13,437,500 shares of Common Stock underlying the outstanding Series B Convertible Preferred, with a stated value
of $1,000 per share, held by HB Fund LLC, convertible at a price of $1.00 per share, none of which shares are being registered for resale
under this prospectus;(iv) 5,375,000 shares of Common Stock underlying the 5,375 shares of additional Series B Convertible Preferred
(none of which are outstanding as of the date hereof), with a stated value of $1,000 per share, convertible at a price of $1.00 per share,
that HB Fund LLC has a right to acquire at an additional closing under the February Purchase Agreement (as defined above), subject to
the waiver of certain conditions to closing, none of which shares are being registered for resale under this prospectus; and (v) 419,041
shares of Common Stock held by HB Fund LLC that were previously acquired, none of which shares are being registered for resale under
this prospectus. |
| (4) | For the purposes of the calculations of Common Stock to be sold
pursuant to the prospectus we are assuming an event of default has not occurred, and that the Note is converted in full at the Floor
Price of $0.10 per share without regard to any limitations set forth therein. |
| (5) | Represents the amount of shares that will be held by the selling
stockholder after completion of this offering based on the assumptions that (a) all Common Stock underlying the Note registered for sale
by the registration statement of which this prospectus is part will be sold and (b) no other shares of Common Stock are acquired or sold
by the selling stockholder prior to completion of this offering. However, the selling stockholder is not obligated to sell all or any
portion of the shares of our Common Stock offered pursuant to this prospectus. |
PLAN OF DISTRIBUTION
We are registering the shares
of Common Stock issuable upon conversion of the Note to permit the resale of these shares of Common Stock by the holders of the Note 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 a selling security holder 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 notes 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 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.
To the extent required by
the Securities Act and the rules and regulations thereunder, 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 Securities 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 Securities 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 re-allowed 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 Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange
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. To the extent applicable, 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 $4,338.36 in total, including, without
limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky”
laws; provided, however, 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 Securities 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 Securities 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 agreements 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, 2021, and for each of the periods 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; |
| 2. | our Quarterly Report on Form 10-Q for the three months ended
March 31, 2022, filed with the SEC on May 16, 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.
120,000,000 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 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 | |
$ | 4,338.36 | |
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 |
4.6(5) |
|
Form of Monroe Warrant |
4.7(12) |
|
Certificate of Designation of Series B Convertible Preferred Stock |
4.8(12) |
|
Warrant Issued March 1, 2022 |
4.9(12) |
|
Certificate of Elimination of Series A Convertible Preferred Stock |
4.10(10) |
|
Senior Secured Convertible Note, dated April 19, 2022 |
5.1 |
|
Opinion of Greenberg Traurig, LLP* |
10.1(8) |
|
Asset Purchase Agreement, dated January 26, 2022 |
10.2(11) |
|
Securities Purchase Agreement, dated as of February 28, 2022 |
10.3(13) |
|
Restrictive Covenant Agreement, dated March 15, 2022 |
10.4(9) |
|
Securities Purchase Agreement, dated as of April 14, 2022 |
10.5(10) |
|
Security and Pledge Agreement, dated as of April 19, 2022 |
10.6(10) |
|
Guaranty, dated as of April 19, 2022 |
10.7(10) |
|
Registration Rights Agreement, dated as of April 19, 2022 |
10.8(9) |
|
Form of Voting Agreement |
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) |
107 |
|
Filing Fee Table * |
| (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 February 1, 2022. |
| (9) | Incorporated by reference to an exhibit to the Company’s
current report on Form 8-K filed with the SEC on April 15, 2022. |
| (10) | Incorporated by reference to an exhibit to the Company’s
current report on Form 8-K filed with the SEC on April 25, 2022. |
| (11) | Incorporated by reference to an exhibit to the Company’s
current report on Form 8-K filed with the SEC on February 28, 2022. |
| (12) | Incorporated by reference to an exhibit to the Company’s
current report on Form 8-K filed with the SEC on March 2, 2022. |
| (13) | Incorporated by reference to an exhibit to the Company’s
current report on Form 8-K filed with the SEC on March 16, 2022. |
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 19th day of May, 2022.
|
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/ Michael Tessler |
|
Chairman of the Board |
|
May 19, 2022 |
Michael Tessler |
|
|
|
|
|
|
|
|
|
/s/ Lawrence E. Mock, Jr. |
|
Director |
|
May 19, 2022 |
Lawrence E. Mock, Jr. |
|
|
|
|
|
|
|
|
|
/s/ Robert Willis |
|
Vice Chairman |
|
May 19, 2022 |
Robert Willis |
|
|
|
|
|
|
|
|
|
/s/ Darrell Mays |
|
Chief Executive Officer and Director |
|
May 19, 2022 |
Darrell Mays |
|
|
|
|
|
|
|
|
|
/s/ Thomas H. King |
|
Chief Financial Officer |
|
May 19, 2022 |
Thomas H. King |
|
|
|
|
|
|
|
|
|
/s/ Mark Downs |
|
Director |
|
May 19, 2022 |
Mark Downs |
|
|
|
|
|
|
|
|
|
/s/ U. Bertram Ellis, Jr. |
|
Director |
|
May 19, 2022 |
U. Bertram Ellis, Jr. |
|
|
|
|
|
|
|
|
|
/s/ Carolyn Byrd |
|
Director |
|
May 19, 2022 |
Carolyn Byrd |
|
|
|
|
|
|
|
|
|
/s/ Karl Krapek |
|
Director |
|
May 19, 2022 |
Karl Krapek |
|
|
|
|
|
|
|
|
|
/s/ Dr. Klaas Baks |
|
Director |
|
May 19, 2022 |
Dr. Klaas Baks |
|
|
|
|
|
|
|
|
|
/s/ Kent Mathy |
|
Director |
|
May 19, 2022 |
Kent Mathy |
|
|
|
|
/s/ Dennis Lockhart |
|
Director |
|
May 19, 2022 |
Dennis Lockhart |
|
|
|
|
II-5
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