BNB Standard Corp S-1, filed Sep 22, 2022
BNB Standard Corp (BNC)
As filed with the Commission on September 22, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CEA INDUSTRIES INC.
(formerly known as Surna Inc.)
(Exact name of registrant as specified in its charter)
| Nevada | 0700 | 27-3911608 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
385 South Pierce Avenue, Suite C
Louisville, Colorado 80027
(303) 993-5271
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Anthony K. McDonald
Chief Executive Officer
CEA Industries Inc.
385 South Pierce Avenue, Suite C
Louisville, Colorado 80301
(303) 993-5271
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Andrew D. Hudders
Golenbock Eiseman Assor
Bell & Peskoe LLP
711 Third Avenue, 17th Floor
New York, NY 10017
(212) 907-7300
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, 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 post-effective amendment filed pursuant to Rule 462(d) 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. ☐
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.
| Large accelerated filer ☐ | Non-accelerated filer ☒ | Accelerated filer ☐ | Smaller reporting company ☒ |
| Emerging growth company ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
PROSPECTUS
Subject to Completion, Dated September 22, 2022
CEA INDUSTRIES INC.
6,863,365 Shares of Common Stock Issuable Upon the Exercise of Warrants
This prospectus relates to 6,572,808 shares of common stock issuable upon the exercise of warrants issued to investors in our public offering (the “Public Warrants”) and 290,557 shares of common stock issuable upon exercise of warrants issued to the representatives of the underwriters (the “Underwriter Warrants”) on February 10, 2022. Together the Public Warrants and the Underwriter Warrants are sometimes herein collectively referred to as the “Warrants”).
Our common stock is traded on Nasdaq Capital Market under the symbol “CEAD.” On September 21, 2022, the last reported sales price of the common stock was $1.13 per share. The Public Warrants trade on the Nasdaq Capital Market under the symbol “CEADW.” On September 21, 2022, the last reported sales price of the Public Warrants was $0.135 per warrant. The Underwriter Warrants are not listed for trading on any exchange.
Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 5 of this prospectus and the risk factors in the documents incorporated by reference in this prospectus to read about factors you should consider before deciding to invest in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is September 22, 2022
TABLE OF CONTENTS
You should rely only on the information provided in this prospectus, as well as the information incorporated by reference into this prospectus and any applicable prospectus supplement. We have not authorized anyone to provide you with different information. No offer or sale of these securities is being made in any jurisdiction where the offer or sale is not permitted. You should not assume that the information in this prospectus, any applicable prospectus supplement or any documents incorporated by reference is accurate as of any date other than the date of the applicable document. Since the respective dates of this prospectus and the documents incorporated by reference into this prospectus, the Company’s business, financial condition, results of operations and prospects may have changed.
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This summary highlights selected information contained elsewhere or incorporated by reference in this prospectus. This summary does not contain all of the information that you should consider before investing in either the common stock or Public Warrants of the Company. For a more complete understanding of us and this offering, you should read and carefully consider the entire prospectus and the documents incorporated by reference herein, including the more detailed information set forth under “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and our audited consolidated financial statements and the related notes included in our 2021 Form 10-K and our 2022 Form 10-Q for the quarter ended June 30, 2022, which are incorporated by reference herein. Unless otherwise indicated in this prospectus, the “Company”, “we”, “us” or “our” refer to CEA Industries Inc. (formerly known as Surna Inc.) and, where appropriate, its wholly-owned subsidiary.
Overview
The Company is an industry leader in CEA (“Controlled Environment Agriculture”) facility design, technologies, and services. The CEA industry is one of the fastest-growing sectors of the United States’ economy and is defined by type of facility. The CEA industry is composed of any horticultural facility that is fully self-contained and has a controlled environment. Three facility types meet these criteria:
● Indoor facilities – environmentally sealed facilities for growing crops and that require artificial lighting.
● Vertical farms –cultivation facilities oriented vertically to minimize ground square footage.
● Greenhouses – facilities that are made of translucent materials to use natural sunlight on the crops.
Crops grown in CEA facilities include: leafy greens (kale, Swiss chard, mustard, cress), microgreens (leafy greens harvested at the first true leaf stage), ethnic vegetables, ornamentals and small fruits (such as strawberries, blackberries and raspberries), bell peppers, cucumbers, tomatoes, cannabis and hemp. Historically, we have primarily served customers growing cannabis in indoor facilities and we are currently pursuing our strategy to broaden our reach to serve other indoor farming facilities, including vertical farms.
We provide full-service licensed architectural and mechanical, electrical, and plumbing (“MEP”) engineering services, carefully curated heating, ventilation and air conditioning (“HVACD”) equipment, proprietary controls systems, air sanitation, lighting, and benching and racking products. Our team (including both internal employees and outside partnerships) of project managers, licensed professional architects and engineers, technology and horticulture specialists and systems integrations experts help our customers by precisely designing for their unique applications. Through our partnership with a certified service contractor network, we provide maintenance services to assist in a smooth build-out and ensure optimal facility performance.
We leverage our industry-leading experience to bring value-added solutions to our customers that help improve their overall crop quality and yield, optimize energy and water efficiency, and satisfy evolving state and local construction code, permitting and regulatory requirements. Our revenue stream derives primarily from supplying our products, services and technologies to commercial indoor facilities ranging from several thousand to more than 100,000 square feet.
CEA facility operators face multiple headwinds from high energy costs, water usage and waste materials, and, in the case of cannabis growing, increasingly rigorous quality standards and declining cannabis prices. To be competitive, among other things, our customers must develop innovative ways to meet the demands of their business and reduce energy costs, 90% of which are typically related to their HVACD (50%) and lighting systems (40%). HVACD systems have historically been and continue to be our primary area of expertise and energy efficiency is high on our list of considerations when engineering environmental control systems.
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We often have the advantage of early engagement with our customers at the pre-build and construction phases and the corresponding opportunity to build longer-term relationships with our existing customers. During 2021, we added architectural services to our offerings in an attempt to engage with the customer at an even earlier stage. Going forward, we plan to leverage our existing customer relationships by introducing them to our expanded design services along with our expanded product offerings. We believe these efforts will generate incremental revenue and make us “stickier” to our customers.
We have three core assets that we believe are important to our going-forward business strategy and that will contribute to our future growth. First, we have a well-known brand name in the industry along with multi-year relationships with customers and others developed over our fifteen years of service to the industry. This length of service and broad network of industry contacts will benefit not only our organic growth initiatives, but also provide us with unique insight into other industry providers who may be appropriate for acquisition or joint efforts. Second, we have specialized engineering know-how and experience gathered from designing environmental control systems for over 200 commercial CEA cultivation facilities. Third, we have an expanding line of proprietary and curated environmental control systems and other core technology components needed to build a CEA facility.
Impact of the COVID-19 Pandemic on Our Business
The COVID-19 pandemic has prompted national, regional, and local governments, including those in the markets that the Company operates in, to implement preventative or protective measures to control its spread. As a result, there have been disruptions in business operations around the world, with an impact on our business.
In response to the COVID-19 pandemic and the associated government and business response, the Company took and continues to take measures to adjust its operations as necessary. In early 2020 the Company responded to reduced orders by reducing expenses in an effort to preserve cash. As 2020 progressed and our sales rebounded, and we were able to obtain additional funds through a forgivable bank loan, we restored our workforce and increased our operations. Many of these expense reductions were reversed by the end of 2021 when orders picked up and the overall business climate improved. Because the pandemic continues in different parts of the world and in different ways in the United States, the Company continues to actively monitor its operations.
We are experiencing unexpected and uncontrollable delays with our international supply of products and shipments from vendors due to a significant increase in shipments to U.S. ports, compounded by a reduction in cargo being shipped by air, a general shortage of containers, and a shortage of domestic truck driver availability. While these delays have moderately improved in recent months, we, along with many other importers of goods across all industries, continue to experience severe congestion and extensive wait times for carriers at ports across the United States. In addition, restrictions imposed by local, state and federal agencies due to the COVID-19 pandemic have led to reduced personnel of importers, government staff and others in our supply chain. We have been working diligently with our network of freight partners and suppliers to expedite delivery dates and provide solutions to reduce further impact and delays. However, we are unable to determine the full impact of these delays and how long they will continue as they are out of our control.
While the Company is continuing to navigate the financial, operational, and personnel challenges presented by the COVID-19 pandemic, the full extent of the impact of COVID-19 on our operational and financial performance will depend on future developments, including the duration and spread of the pandemic, the potential uncertainty related to (and proliferation of) new strains, and related actions taken by federal, state, local and international government officials, to prevent and manage the spread of COVID-19. All of these efforts are uncertain, out of our control, and cannot be predicted at this time.
Impact of Ukrainian Conflict
Currently, we believe that the conflict between Ukraine and Russia does not have any direct impact on our operations, financial condition or financial reporting. We believe the conflict will have only a general impact on our operations in the same manner as it is having a general impact on all businesses that have their operations limited to North America resulting from international sanction and embargo regulations, possible shortages of goods and goods incorporating parts that may be supplied from the Ukraine or Russia, supply chain challenges, and the international and US domestic inflationary results of the conflict and government spending for and funding of our country’s response. As our operations are related only to the North American controlled agricultural industry, largely within the cannabis space, we do not believe we will be targeted for cyber-attacks. We have no operations in the countries directly involved in the conflict or are specifically impacted by any of the sanctions and embargoes, as we principally operate in the United States and Canada. We do not believe that the conflict will have any impact on our internal control over financial reporting. Other than general securities market trends, we do not have reason to believe that investors will evaluate the company as having special risks or exposures related to the Ukrainian conflict.
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Corporate Information
Our executive offices are located at 385 South Pierce Avenue, Suite C, Louisville, Colorado 80027. Our telephone number is (303) 993-5271. Our website address is www. ceaindustries.com. The information on our website is deemed not to be incorporated in this prospectus or to be part of this prospectus.
| Shares of common stock to be issued upon the exercise of the Warrants: |
6,863,365 shares of common stock. | |
| Shares of common stock outstanding before any exercise of the Warrants: | 7,953,974 shares of common stock. | |
| Shares of common stock outstanding after exercise of all the Warrants: |
14,817,339 shares of common stock. | |
| Use of proceeds: | We will receive $5.00 per share of common stock upon the exercise of a Public Warrant and $5.1625 per share of common stock upon the exercise of a Underwriter Warrant. We will bear all of the offering expenses other than the underwriting discounts and commissions. The net proceeds, if any, will be used for working capital and other corporate purposes. | |
| Market for our common stock: | Our shares of common stock are currently listed on the Nasdaq Capital Market under the symbol “CEAD”. | |
| Market for our Public Warrants: | Our Public Warrants are currently listed on the Nasdaq Capital Market under the symbol “CEADW”. | |
| Risk factors: | Any investment in the securities offered hereby is speculative and involves a high degree of risk. You should carefully consider the information set forth under “Risk Factors” on page 5 of this prospectus and in our Form 10-K Annual Report, which is incorporated by reference into this Prospectus. |
Our shares of common stock outstanding after this offering is based on 7,953,974 shares currently outstanding and share data:
● excludes 254,020 shares of common stock issuable upon the exercise of outstanding exercisable options at a weighted exercise price of $9.06 per share;
● excludes 3,367 shares of common stock issuable upon vesting of Restricted Stock Units;
● excludes 7,623,772 shares of common stock issuable upon the exercise of outstanding warrants at a weighted exercise price of $5.14 per share; and
● excludes 568,751 shares of common stock reserved for future issuance pursuant to our 2017 Equity Incentive Plan and 2021 Equity Incentive Plan.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes statements that express our opinions, expectations, beliefs, plans, objectives, assumptions or projections regarding future events or future results and therefore are, or may be deemed to be, “forward-looking statements.” All statements other than statements of historical facts contained in this prospectus may be forward-looking statements. These forward-looking statements can generally be identified by the use of forward-looking terminology, including the terms “believes,” “estimates,” “continues,” “anticipates,” “expects,” “seeks,” “projects,” “intends,” “plans,” “may,” “will,” “would” or “should” or, in each case, their negative or other variations or comparable terminology. They appear in a number of places throughout this prospectus, and include statements regarding our intentions, beliefs or current expectations concerning, among other things, our results of operations, financial condition, liquidity, prospects, growth, strategies, future acquisitions and the industry in which we operate.
These forward-looking statements are subject to known and unknown risks, uncertainties, assumptions and other factors that could cause our actual results of operations, financial condition, liquidity, performance, prospects, opportunities, achievements or industry results, as well as those of the markets we serve or intend to serve, to differ materially from those expressed in, or suggested by, these forward-looking statements. These forward-looking statements are based on assumptions regarding our present and future business strategies and the environment in which we operate. Important factors that could cause those differences include, but are not limited to:
| ● | our business prospects and the prospects of our existing and prospective customers; | |
| ● | the impact on our business and that of our customers of the current and future response by the government and business to the COVID-19 pandemic, including what is necessary to protect our staff and the staff of our customers in the conduct of our business; | |
| ● | the overall impact of the COVID-19 pandemic on the business climate in our industry and the willingness of our customers to undertake projects in light of economic uncertainties; | |
| ● | our overall financial condition, including our reduced revenue and business disruption, due to the COVID-19 pandemic business and economic response and its consequences; | |
| ● | the inherent uncertainty of product development; | |
| ● | regulatory, legislative and judicial developments, especially those related to changes in, and the enforcement of, cannabis laws; | |
| ● | increasing competitive pressures in the CEA (Controlled Environment Agriculture) industry; | |
| ● | the ability to effectively operate our business, including servicing our existing customers and obtaining new business; | |
| ● | our relationships with our customers and suppliers; | |
| ● | the continuation of normal payment terms and conditions with our customers and suppliers, including our ability to obtain advance payments from our customers; | |
| ● | general economic conditions, our customers’ operations and access to capital, and market and business disruptions including severe weather conditions, natural disasters, health hazards, terrorist activities, financial crises, political crises or other major events, or the prospect of these events, adversely affecting demand for the products and services offered by us in the markets in which we operate; | |
| ● | the supply of products from our suppliers and our ability to complete contracts, some of which depend on other actors for a comprehensive project completion; |
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| ● | changes in our business strategy or development plans, including our expected level of capital expenses and working capital; | |
| ● | our ability to attract and retain qualified personnel; | |
| ● | our ability to raise equity and debt capital, as needed from time to time, to fund our operations and growth strategy, including possible acquisitions; | |
| ● | our ability to identify, complete and integrate potential strategic acquisitions; | |
| ● | future revenue being lower than expected; | |
| ● | our ability to convert our backlog into revenue in a timely manner, or at all; and | |
| ● | our intention not to pay dividends. |
These factors should not be construed as exhaustive and should be read with the other cautionary statements in this prospectus.
Although we base these forward-looking statements on assumptions that we believe are reasonable when made, we caution you that forward-looking statements are not guarantees of future performance and that our actual results of operations, financial condition and liquidity, and industry developments may differ materially from statements made in or suggested by the forward-looking statements contained in this prospectus. The matters summarized under “Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business” and elsewhere in this prospectus could cause our actual results to differ significantly from those contained in our forward-looking statements. In addition, even if our results of operations, financial condition and liquidity, and industry developments are consistent with the forward-looking statements contained in this prospectus, those results or developments may not be indicative of results or developments in subsequent periods.
In light of these risks and uncertainties, we caution you not to place undue reliance on these forward-looking statements. Any forward-looking statement that we make in this prospectus speaks only as of the date of such statement, and we undertake no obligation to update any forward-looking statement or to publicly announce the results of any revision to any of those statements to reflect future events or developments, except as required by applicable law. Comparisons of results for current and any prior periods are not intended to express any future trends or indications of future performance, unless specifically expressed as such, and should only be viewed as historical data.
You should carefully consider the risks described below, as well as the risks and uncertainties set forth under the heading “Risk Factors” in our 2021 Form 10-K, which is incorporated by reference in this prospectus, together with the financial and other information contained in this prospectus, before you decide to purchase shares of our common stock. If any of the following risks actually occur, or if any additional risks not presently known to us or that we have currently deemed immaterial occur, our business, financial condition, results of operations, cash flows and prospects could be materially and adversely affected. In such an event, the trading price of our common stock could decline and you could lose all or part of your investment in our common stock.
Risks Related to Our Common Stock
Our common stock price may be volatile and may decrease substantially.
The trading price of our common stock in the public securities markets has fluctuated substantially, and we expect that it will continue to do so. The price of our common stock in the public market on any particular day depends on many factors including, but not limited to, the following:
| ● | price and volume fluctuations in the overall stock market from time to time; |
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| ● | investor demand for our shares and warrants; |
| ● | significant volatility in the market price and trading volume of companies in the cannabis industry; | |
| ● | variations in our operating results and market conditions specific to our business; | |
| ● | the emergence of new competitors or new technologies; | |
| ● | operating and market price performance of other companies that investors deem comparable; | |
| ● | changes in our Board of Directors or management; | |
| ● | sales or purchases of our common stock by insiders, including sales of our common stock issued to employees, directors and consultants under our equity incentive plan which were registered under the Securities Act of 1933, as amended (the “Securities Act”) under our S-8 registration statement; | |
| ● | commencement of, or involvement in, litigation; | |
| ● | changes in governmental regulations, in particular with respect to the cannabis industry; | |
| ● | actual or anticipated changes in our earnings, and fluctuations in our quarterly operating results; | |
| ● | market sentiments about the cannabis industry; | |
| ● | general economic conditions and trends; and | |
| ● | departures of any of our key employees. |
In the past, following periods of volatility in the market price of a company’s securities, securities class action litigation has often been brought against that company. Due to the potential volatility of our stock price, we may therefore be the target of securities litigation in the future. Securities litigation could result in substantial costs and divert management’s attention and resources from our business.
In addition, if the market for investment securities in our industry, or the stock market in general, experiences a loss of investor confidence, the market price of our common stock could decline for reasons unrelated to our business, financial condition, or results of operations. If any of the foregoing occurs, it could cause the public market price of our common stock to fall and may expose us to lawsuits that, even if unsuccessful, could be costly to defend and a distraction to our Board of Directors and management.
Our Board of Directors is authorized to reclassify any unissued shares of our preferred stock into one or more classes, which could convey special rights and privileges to its owners.
Our articles of incorporation permit our Board of Directors to reclassify any authorized but unissued shares of preferred stock into one or more classes. Our Board of Directors will generally have broad discretion over the size and timing of any such classification, subject to a finding that the classification and issuance of preferred stock is in our best interests. In the event our Board of Directors opts to classify a portion of our unissued shares of preferred stock into a class of preferred stock, those preferred shares would have a preference over our common stock with respect to dividends and liquidation. The cost of any classification would be borne by our existing common stockholders. The class voting rights of any preferred shares we may issue could make it more difficult for us to take some actions that may, in the future, be proposed by the Board of Directors and/or the holders of our common stock, such as a merger, exchange of securities, liquidation, or alteration of the rights of a class of our securities, if these actions were perceived by the holders of preferred shares as not in their best interests. These effects, among others, could have an adverse effect on your investment in our common stock.
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Rule 144 and registration rights contain risks for shareholders.
From time to time, we issue shares of common stock on an unregistered basis, which may become eligible for resale under SEC Rule 144, promulgated under the Securities Act, or we may be required under a registration rights agreement to register with the SEC the securities for resale. In the event there are securities outstanding that can be sold under Rule 144 or under a registration statement for resale, there may be market pressure on our common stock to absorb the securities available for sale, with the consequence that market value of a share of common stock in the public market at that time may be depressed.
We have a substantial number of options and warrants outstanding, which if exercised for shares of common stock may put pressure on the market price of a share.
We have sold to public and private investors a substantial number of warrants to purchase common stock from time to time over the next several years. In addition, we have a substantial number of options and warrants outstanding held by investment bankers who provided us with underwriting and placement services that were issued warrants and employees that were issued options and restricted stock units. To the extent that these are exercised for shares of common stock, there may be pressure on our stock price while the market absorbs them. The potential of exercise may also have the same effect. Investors should expect that the options and warrants will be exercised when the stock price is substantially above the exercise price.
We do not anticipating paying any cash dividends on our common stock in the foreseeable future.
We currently intend to retain our future earnings, if any, for the foreseeable future, to repay indebtedness and to fund the development and growth of our business. We do not intend to pay any dividends to holders of our common stock in the foreseeable future. Any decision to declare and pay dividends in the future will be made at the discretion of our Board taking into account various factors, including our business, operating results and financial condition, current and anticipated cash needs, plans for expansion, any legal or contractual limitations on our ability to pay dividends under our loan agreements or otherwise. As a result, if our Board does not declare and pay dividends, the capital appreciation in the price of our common stock, if any, will be your only source of gain on an investment in our common stock, and you may have to sell some or all of your common stock to generate cash flow from your investment.
The market price of our shares of common stock may be adversely affected by the sale of shares by our management or large stockholders.
Sales of our shares of common stock by our officers or senior managers through 10b5-1 plans or otherwise or by large stockholders could adversely and unpredictably affect the public market price of our common stock. Additionally, the public market price of our shares of common stock could be affected even by the potential of sales by these persons. We cannot predict the effect that any future sales of our common stock, or the potential for those sales, will have on our share price. Furthermore, due to relatively low trading volume of our common stock, should one or more large stockholders seek to sell a significant portion of their shares of common stock in a short period of time, the price of our common stock may decline.
An active, liquid trading market for our common stock may not develop or be sustained, and as a result, investors may not be able to sell their common stock at or above their acquisition price, or at all.
Prior to February 10, 2022, our common stock was quoted on the OTCQB of the OTC Markets Group, Inc. Trading on the OTCQB marketplace was infrequent and in limited volume. Although our common stock is now listed on the Nasdaq Capital Market, along with our public warrants, an active trading market for these securities may never develop or be sustained. If an active trading market does not develop, investors will have difficulty selling their shares of common stock and warrants at an attractive price, or at all. An inactive securities market for our shares of common stock may also impair our ability to raise capital and may impair our ability to expand our business by using our common stock and common stock related securities as consideration in an acquisition or for capital raising.
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You may be diluted by future issuances of preferred stock or additional common stock in connection with our incentive plans, acquisitions or otherwise; future sales of such shares in the public market, or the expectations that such sales may occur, could lower our stock price.
Our articles of incorporation authorizes us to issue shares of our common stock and options, rights, warrants and appreciation rights relating to our common stock for the consideration and on the terms and conditions established by our Board in its sole discretion. We could issue a significant number of shares of common stock in the future in connection with investments or acquisitions. Any of these issuances could dilute our existing stockholders, and such dilution could be significant. Moreover, such dilution could have a material adverse effect on the market price for the shares of our common stock.
The future issuance of shares of preferred stock with voting rights may adversely affect the voting power of the holders of shares of our common stock, either by diluting the voting power of our common stock if the preferred stock votes together with the common stock as a single class, or by giving the holders of any such preferred stock the right or ability to block an action on which they have a separate class vote, even if the action were approved by the holders of our shares of our common stock.
The future issuance of shares of preferred stock with dividend or conversion rights, liquidation preferences or other economic terms favorable to the holders of preferred stock, when compared to the rights of the common stockholders, could adversely affect the market price for our common stock by making an investment in the common stock less attractive. For example, investors in the common stock may not wish to purchase common stock at a price above the conversion price of a series of convertible preferred stock because the holders of the preferred stock would effectively be entitled to purchase common stock at the lower conversion price, causing economic dilution to the holders of common stock.
Risks Related to Our Public Warrants
There has not been an active, long term or sustained trading market for the Public Warrants, which could harm the market price of the Public Warrants, and you may not be able to resell the warrants at or above the price paid for the warrants or to exercise your Public Warrants at a profit.
There is a risk that an active trading market for the Public Warrants may not develop or be sustained. The Exercise price of the Public Warrants, and the value of our company, were determined by negotiations among the underwriters and us in connection with the February 2022 public offering. The Public Warrants may not trade at prices that equal or are greater than the initial offering price of the Public Warrants, the price paid for the Public Warrants or the exercise price of the Public Warrants. In the absence of an active trading market for the Public Warrants, or the absence of trading of our common stock above the exercise price of the Public Warrants, investors may not be able to sell their Public Warrants or sell them at a price that will generate a profit.
The public market price of the Public Warrants may be volatile and you could lose all or part of your investment.
The price of the securities of publicly traded companies, such as the Company, has been highly volatile and is likely to remain highly volatile in the future. As a result of this volatility, you may not be able to sell your Public Warrants at a price or time of your selection. The market price of the Public Warrants may fluctuate significantly due to a variety of factors, including general market factors, our financial results, the prospects for our business and our business segment, and changes in government regulation relating to the cannabis industry. All of these factors may cause the market price and demand for our securities to fluctuate substantially. There is no assurance that an active market for our securities will be sustained.
The Public Warrants, which the warrants that are publicly traded, are speculative in nature.
The Public Warrants represent the right to acquire our common stock at a fixed cash price, for a limited period of time. If the Public Warrants are not exercised before they expire, the Public Warrants may not provide any value to the holder thereof. It is usual that the price of a warrant in the public market is more volatile than that of the corresponding common stock for which it is exercisable. Therefore, investors should expect the price of a Public Warrant to fluctuate to a greater degree than our common stock, and correspondingly be more speculative.
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Holders of the Public Warrants and Underwriter Warrants do not have any rights of the holders of common stock until they are exercised.
The Public Warrants and Underwriter Warrants do not confer any of the rights afforded to the holders of our common stock, such as voting rights, the right to receive dividends or liquidation rights, but rather merely represent the right to acquire shares of common stock at a fixed price.
There is no assurance that any of the Public Warrants will be exercised and provide additional working capital to the Company.
It is not expected that the Public Warrants will be exercised unless the price of a share of common stock in the market is substantially above the then exercise price. There can be no assurance that our common stock price will be sufficiently high on a sustained basis to encourage warrant holders to exercise their Public Warrants. The Public Warrants also have a net exercise right if we do not maintain a registration statement to permit the Public Warrants to be exercised for registered common stock, in which exercise instance, the Company will not receive any cash proceeds. There can be no assurance that we will receive cash proceeds from the exercise of the Public Warrants.
There is no assurance that any of the Underwriter Warrants will be exercised and provide additional working capital to the Company.
It is not expected that the Underwriter Warrants will be exercised unless the price of a share of common stock in the market is substantially above the then exercise price. There can be no assurance that our common stock price will be sufficiently high on a sustained basis to encourage warrant holders to exercise their Underwriter Warrants. The Underwriter Warrants also have a net exercise right that may be used at any time, even if the shares to be issued are registered for issuance upon exercise. We expect, as is common, that where a net exercise provision exists in a warrant, it will be used by the holder. Therefore, it is unlikely that the Company will receive any cash proceeds from the exercise of the Underwriter Warrants.
We will receive up to an aggregate of approximately $32,864,040 from the payment of the exercise price of the Public Warrants, assuming the exercise in full of all of the Public Warrants for cash. There is no assurance that any of the Public Warrants will be exercised. If the Underwriter Warrants are fully exercised for cash, then we may receive approximately an additional $1,500,000.
There is no assurance that the any or all of the Public Warrants or the Underwriter Warrants will be exercised. The Underwriter Warrants have a net cashless exercise provision that the holder may use instead of making a cash exercise. It is typical that where a net cashless exercise option exists, the holder will use this means of exercise, which results in no cash amount being paid to the issuer on an exercise. Therefore, we do not expect to receive any cash proceeds from the exercise of the Underwriter Warrants.
We expect to use the net proceeds, if any, from the exercise of the Warrants for general corporate purposes.
We will bear all other costs, fees and expenses incurred in effecting the registration of the common stock covered by this prospectus, including, without limitation, all registration and filing fees, any NASDAQ listing fees, and fees and expenses of our counsel and our independent registered public accountants.
Since our inception, we have not paid any dividends on our common stock, and we currently expect that, for the foreseeable future, all earnings, if any, will be retained for use in the development and operation of our business. In the future, our Board may decide, at its discretion, whether dividends may be declared and paid to holders of our common stock.
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General
For a description of our capital stock, including the common stock, the Public Warrants, and the Underwriter Warrants and the material terms of our Articles of Incorporation, as amended, and Bylaws, as amended, see our 2021 Form 10-K filed with the SEC and Exhibit 4.8 thereto, entitled Description of Capital Stock, and incorporated by reference in this prospectus. For instructions on how to find copies of the filings incorporated by reference in this prospectus, see “Where You Can Find More Information.”
Common Stock
Subject to prior dividend rights of the holders of any shares of issued and outstanding preferred stock of the Company, holders of shares of common stock are entitled to receive dividends when, as and if declared by the Board out of funds legally available for that purpose.
Each share of common stock is entitled to one vote on all matters submitted to a vote of stockholders. Holders of shares of common stock do not have cumulative voting rights. The holders of a majority of the shares of common stock present and entitled to vote in the election of directors can elect all directors standing for election.
In the event of any liquidation, dissolution or winding up of the Company, after the satisfaction in full of the liquidation preferences of holders of any shares of issued and outstanding preferred stock, holders of shares of common stock are entitled to ratable distribution of the remaining assets available for distribution to stockholders. The shares of common stock are not subject to redemption by operation of a sinking fund or otherwise. Holders of shares of common stock are not currently entitled to pre-emptive rights.
Public Warrants
On February 10, 2022, we issued in a public offering an aggregate of 6,572,808 Public Warrants to investors. The Public Warrants are traded on Nasdaq under the symbol CEADW. The Public Warrants are exercisable for shares of our common stock upon payment of the cash exercise price of $5.00, and all of such shares currently are registered for issuance upon the exercise of the Public Warrants. Currently, the aggregate number of shares of common stock that may be acquired upon exercise of the Public Warrants is 6,572,808 shares of common stock.
The Public Warrants are issued in electronic book-entry form to the investors.
The Public Warrants are exercisable at any time after their original issuance, and at any time up to the date that is five years after their original issuance. The Public Warrants are exercisable, at the option of each holder, in whole or in part by delivering to us a duly executed exercise notice and, at any time a registration statement registering the issuance of the shares of common stock underlying the Public Warrants under the Securities Act is effective and available for the issuance of such shares, by payment in full in immediately available funds for the number of shares of common stock purchased upon such exercise. If a registration statement registering the issuance of the shares of common stock underlying the Public Warrants under the Securities Act is not effective or available, the holder may, in its sole discretion, elect to exercise the Public Warrant through a cashless exercise, in which case the holder would receive upon such exercise the net number of shares of common stock determined according to the formula set forth in the Public Warrant. No fractional shares of common stock will be issued in connection with the exercise of a Public Warrant. In lieu of fractional shares, we will pay the holder an amount in cash equal to the fractional amount multiplied by the exercise price or round up to the next whole share.
A holder of Public Warrants will not have the right to exercise any portion of the Public Warrant if the holder (together with its affiliates) would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Public Warrants. However, any holder may increase or decrease such percentage to any other percentage not in excess of 9.99% upon at least 61 days’ prior notice from the holder to us.
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The exercise price per whole share of common stock purchasable upon exercise of a Public Warrant is $5.00 per share of common stock. The exercise price is also subject to appropriate adjustment in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting our common stock and also upon any distributions of assets, including cash, stock or other property to our stockholders.
In the event of a fundamental transaction, as described in the Public Warrants and generally including any reorganization, recapitalization or reclassification of our common stock, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding common stock, or any person or group becoming the beneficial owner of 50% of the voting power represented by our outstanding common stock, the holders of the Public Warrants will be entitled to receive upon exercise of the Public Warrants the kind and amount of securities, cash or other property that the holders would have received had they exercised the Public Warrants immediately prior to such fundamental transaction.
Except as otherwise provided in the Public Warrants or by virtue of such holder’s ownership of shares of our common stock, the holder of a warrant does not have the rights or privileges of a holder of our common stock, including any voting rights, until the holder exercises the warrant.
Underwriter Warrants
We issued to the representative of the underwriters in our public offering of securities of February 10, 2022, and its designees, as compensation, the Underwriter Warrants to purchase up to 290,557 shares of common stock, which was equal to 5% of the aggregate number of shares of common stock sold in this offering. The Underwriter Warrants are exercisable at a per share exercise price of $5.1625.
The Underwriter Warrants are not listed or traded on Nasdaq or any other public stock exchange or trading medium.
The Underwriter Warrants have certain registration rights that permit the holders thereof to request a one-time demand registration right provided the request is made before February 10, 2027, and unlimited piggyback registration rights provided the request is made before February 10, 2029. We will bear all fees and expenses of registering the securities issuable on exercise of the Underwriter Warrants other than underwriting commissions incurred and payable by the holders.
The exercise price and number of shares issuable upon exercise of the warrants may be adjusted in certain circumstances including in the event of a stock dividend or our recapitalization, reorganization, merger or consolidation. However, the warrant exercise price or underlying shares will not be adjusted for issuances of shares of common stock at a price below the warrant exercise price.
The holder of an Underwriter Warrant does not have the rights or privileges of a holder of our common stock, including any voting rights, until the holder exercises the Underwriter Warrant.
SHARES ELIGIBLE FOR FUTURE SALE
Shares of our common stock are traded on the Nasdaq Capital Market under the symbol “CEAD.” Future sales of substantial amounts of our common stock in the public market, or the perception that such sales may occur, could adversely affect market prices and trading volume prevailing from time to time.
As of September 21, 2022, we had 7,953,974 shares of common stock outstanding. All of these shares of our common stock are freely transferable without restriction or further registration under the Securities Act. Currently there are no shares of outstanding common stock that are “restricted shares” as defined in Rule 144. Restricted shares may be sold in the public market only if registered under the Securities Act or if they qualify for an exemption from registration under Rule 144.
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Currently there are no shares of common stock subject to any lock up arrangements.
Rule 144
In general, a person who has beneficially owned restricted shares of our common stock for at least six months would be entitled to sell such securities, provided that (i) such person is not deemed to have been one of our affiliates at the time of, or at any time during the 90 days preceding, the sale and (ii) we are subject to the Exchange Act periodic reporting requirements for at least 90 days before the sale. Persons who have beneficially owned restricted shares of our common stock for at least six months but who are our affiliates at the time of, or any time during the 90 days preceding, the sale, would be subject to additional restrictions, by which such person would be entitled to sell within any three-month period only a number of securities that does not exceed the greater of the following:
| ● | 1% of the number of shares of our common stock then outstanding; or | |
| ● | the average weekly trading volume of our common stock on the Nasdaq Capital Market during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale; |
provided, in each case, that we are subject to the Exchange Act periodic reporting requirements for at least 90 days before the sale. Such sales both by affiliates and by non-affiliates must also comply with the manner of sale and notice provisions of Rule 144 to the extent applicable.
This prospectus relates to 6,863,365 shares of common stock issuable upon the exercise of the Public Warrants and 290,557 shares of common stock issuable upon exercise of the Underwriter Warrants. The terms of these warrants are described under “Description of Securities.”
The shares of common stock issuable upon the exercise of the Warrants and being sold by the Company and will not be offered through underwriters, or brokers or dealers. We will not pay any compensation in connection with the offering and issuance of the shares of common stock upon exercise of the Warrants.
The shares of common stock issuable upon exercise of the Warrants will be listed on Nasdaq, trading on the Capital Market, under the symbol “CEAD.” The common stock will be distributed to holders who exercise the Warrants in accordance with the terms of the applicable warrant.
The validity of the shares of common stock offered hereby has been passed upon for us by Golenbock Eiseman Assor Bell & Peskoe LLP, New York, New York.
The consolidated financial statements of CEA Industries appearing in the Company’s Annual Report (Form 10-K) for the fiscal year ended December 31, 2021, have been audited by Sadler, Gibb & Associates, LLC, an independent registered public accounting firm, as set forth in their report thereon, included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
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The SEC allows us to “incorporate by reference” information from other documents that we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior to the date of this prospectus. We incorporate by reference into this prospectus and the registration statement of which this prospectus is a part of the information or documents listed below that we have filed with the SEC (File No. 001-54286):
| ● | our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the SEC on March 29, 2022; | |
| ● | our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2022, filed with the SEC on May 12, 2022, and our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2022, filed with the SEC on August 11, 2022; | |
| ● | our Current Reports on Form 8-K filed with the SEC on January 20, 2022, February 1, 2022, February 2, 2022, February 25, 2022, March 15, 2022, March 29, 2022, May 12, 2022, June 6, 2022, and August 30, 2022; | |
| ● | our Proxy Statement dated July 8, 2022, as filed with the SEC on July 8, 2022, as supplemented on August 30, as filed with the SEC on August 30, 2022; and | |
| ● | the description of our common stock and our Warrants set forth in our registration statement on Form 8-A, filed with the SEC on February 4, 2022, including any amendments thereto or reports filed for the purposes of updating this description and Exhibit No. 4.8 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the SEC on March 29, 2022. |
In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (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 which indicates that all securities offered hereunder have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.
Notwithstanding the statements in the preceding paragraphs, no document, report or exhibit (or portion of any of the foregoing) or any other information that we have “furnished” to the SEC pursuant to the Exchange Act shall be incorporated by reference into this prospectus.
We will furnish without charge to you, on written or oral request, a copy of any or all of the documents incorporated by reference in this prospectus, including exhibits to these documents. You should direct any requests for documents to CEA Industries Inc., 385 South Pierce Avenue, Suite C, Louisville, CO 80027, Attention: Secretary.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed modified, superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus modifies, supersedes or replaces such statement.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1 under the Securities Act to register our securities being offered in this prospectus. This prospectus, which forms part of the registration statement, does not contain all of the information included in the registration statement and the attached exhibits. You will find additional information about us and our securities in the registration statement. References in this prospectus to any of our contracts, agreements, or other documents are not necessarily complete, and you should refer to the exhibits attached to the registration statement for copies of the actual contracts, agreements or documents.
The SEC maintains an Internet website that contains reports and other information about issuers, like us, that file electronically with the SEC. The address of that website is www.sec.gov. This reference to the SEC’s website is an inactive textual reference only and is not a hyperlink.
We are subject to the reporting, proxy and information requirements of the Exchange Act, and are required to file periodic reports, proxy statements and other information with the SEC. These periodic reports, proxy statements and other information are available on the website of the SEC referred to above, as well as on our website, www.ceaindustries.com. This reference to our website is an inactive textual reference only and is not a hyperlink. The contents of, or other information accessible through, our website are not part of this prospectus. We furnish our stockholders with annual reports containing audited financial statements and quarterly reports containing unaudited interim financial statements for each of the first three quarters of each year. Information contained in, or accessible through, our website is not a part of this prospectus.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. Other Expenses of Issuance and Distribution
The following table sets forth all costs and expenses, other than the underwriting discounts and commissions payable by us, in connection with the offer and sale of the securities being registered. All amounts shown are estimates except for the SEC registration fee and the FINRA filing fee.
| SEC registration fee | $ | 3,185.55 | ||
| Accounting fees and expenses | 5,000.00 | |||
| Legal fees and expenses | 15,000.00 | |||
| Printing and related expenses | 3,500.00 | |||
| Miscellaneous expenses | 2,500.00 | |||
| Total | $ | 29,185.55 |
ITEM 14. Indemnification of Directors and Officers
We are a Nevada corporation. The Nevada Revised Statutes (“NRS”) provides that the articles of incorporation of a Nevada corporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except that any such provision may not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its shareholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) acts specified in Section 78 (concerning unlawful distributions), or (iv) any transaction from which a director directly or indirectly derived an improper personal benefit.
The NRS provides that a Nevada corporation must indemnify a person who was wholly successful, on the merits or otherwise, in defense of any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal, in which he or she was a party because the person is or was a director, against reasonable expenses incurred by him or her in connection with the proceeding, unless such indemnity is limited by the corporation’s articles of incorporation.
The NRS provides that a Nevada corporation may indemnify a person made a party to a proceeding because the person is or was a director against any obligation incurred with respect to a proceeding to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan) or reasonable expenses incurred in the proceeding if the person conducted himself or herself in good faith and the person reasonably believed, in the case of conduct in an official capacity with the corporation, that the person’s conduct was in the corporation’s best interests and, in all other cases, his or her conduct was at least not opposed to the corporation’s best interests and, with respect to any criminal proceedings, the person had no reasonable cause to believe that his or her conduct was unlawful. A corporation may not indemnify a director in connection with any proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or, in connection with any other proceeding charging that the director derived an improper personal benefit, whether or not involving actions in an official capacity, in which proceeding the director was judged liable on the basis that he or she derived an improper personal benefit. Any indemnification permitted in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with such proceeding.
Under the NRS, unless otherwise provided in the articles of incorporation, a Nevada corporation may indemnify an officer, employee, fiduciary, or agent of the corporation to the same extent as a director and may indemnify such a person who is not a director to a greater extent, if not inconsistent with public policy and if provided for by its bylaws, general or specific action of its board of directors or shareholders, or contract.
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Our articles of incorporation provide that we will indemnify to the fullest extent permitted by Nevada law any person made or threatened to be made a party to any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative (whether or not by or in the right of the Company) by reason of the fact that he or she is or was a director of the Company or is or was serving as a director, officer, employee or agent of another entity at the request of the Company or any predecessor of the Company against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys’ fees and disbursements) that he or she incurs in connection with such action or proceeding.
Our articles of incorporation also provide that to the fullest extent permitted by NRS 78, a director or officer of the Company will not be personally liable to the company or its stockholders for damages for breach of fiduciary duty as a director or officer, provided that the foregoing will not eliminate or limit the liability of a director or officer for: (a) acts or omissions which involve intentional misconduct, fraud or a knowing violation of law; or (b) the payment of distributions in violation of NRS 78.300.
ITEM 15. Recent Sales of Unregistered Securities.
In the three years preceding the filing of this registration statement, we have issued the following securities that were not registered under the Securities Act:
On September 28, 2021, the Company entered into a Securities Purchase Agreement with an institutional investor, pursuant to which the investor purchased from the Company 3,300 shares of convertible Series B Preferred Stock with a stated value of $1,000 per share, or $3,300,000 of stated value in the aggregate, and a warrant to purchase up to 192,982 shares of common stock of the Company, for an aggregate purchase price of $3,000,000. The warrant is exercisable until September 28, 2024, at an initial exercise price of $9.45, subject to adjustment for stock splits, stock dividends and other typical adjustments and changes in capitalization, including mergers and acquisitions and distribution of rights. The Series B Preferred Stock is convertible into shares of common stock, for no additional consideration. The Company engaged ThinkEquity LLC as its placement agent of the Series B Preferred Stock and paid a cash fee of 9%, or $270,000, and its expenses, less prepaid expenses, and issued to ThinkEquity and its designees a warrant to purchase up to an aggregate of 34,737 shares of common stock. Half of the Public Warrants were issued on September 28, 2021, and the second half were issued on November 3, 2021. The exercise price per share of the placement agent Public Warrants is $10.40, subject to adjustment for stock splits, stock dividends and other typical adjustments and changes in capitalization, including mergers and acquisitions and distribution of rights.
On November 4, 2021, the Company redeemed all the Series A Preferred Stock by the issuance of an aggregate of 2,802 shares of common stock as provided by the amended Articles of Incorporation.
On February 16, 2022, the Company agreed to convert 1,650 shares of the Series B Preferred Stock into 362,306 shares of common stock and 703,069 Public Warrants. Of the Public Warrants, 170,382 are pre-funded Public Warrants that vested immediately, have an indefinite term and an exercise price of $0.01, and the balance of 532,688 Public Warrants also vested immediately, have a term of 5 years and have an exercise price of $5.00. Each warrant entitles the holder to purchase one share of common stock.
These securities, at the time of issuance were registered under the Securities Act of 1933, as amended (the “Act”), pursuant to an exemption under Section 4(a)(2) of the Act for transactions of an issuer not involving a public offering, and may not be offered or sold in the United States absent registration under the Act or an exemption from such registration requirements.
ITEM 16. Exhibits and Financial Statement Schedules
(a) Exhibits. We have filed the exhibits listed on the accompanying Exhibit Index of this Registration Statement.
(b) Financial Statement Schedules. All financial statement schedules are omitted because the information called for is not required or is shown either in the consolidated financial statements or in the notes thereto.
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ITEM 17. Undertakings
(a) 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, as amended (the “Securities Act”);
(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 Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; or
(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 (a)(1)(i), (ii), and (iii) of this section 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 section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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 to any purchaser: If the registrant is subject to Rule 430C (§230.430C of this chapter), 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 (§230.430A of this chapter), 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 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 (§230.424 of this chapter);
(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;
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(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.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) 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.
(c) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.
(d) Insofar as indemnification for liabilities arising under the Securities Act 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 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 and will be governed by the final adjudication of such issue.
(e) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(f) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Louisville, State of Colorado, on the 22nd day of September, 2022.
| CEA INDUSTRIES INC. | ||
| By: | /s/ Anthony K. McDonald | |
| Anthony K. McDonald, | ||
| Chief Executive Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Anthony K. McDonald as his/her true and lawful attorney-in-fact and agent with full power of substitution, for him/her in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments or any abbreviated registration statement and any amendments thereto filed pursuant to Rule 462(b) increasing the number of securities for which registration is sought), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, proxy and agent, or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Anthony K. McDonald | Chief Executive Officer and Director | September 22, 2022 | ||
| Anthony K. McDonald | (Principal Executive Officer) | |||
| /s/ Ian Patel | Chief Financial Officer | September 22, 2022 | ||
| Ian Patel | (Principal Financial and Accounting Officer) | |||
| /s/ James R. Shipley | Director | September 22, 2022 | ||
| James R. Shipley | ||||
| /s/ Nicolas J. Etten | Director | September 22, 2022 | ||
| Nicholas J. Etten | ||||
| /s/ Troy Reisner | Director | September 22, 2022 | ||
| Troy Reisner | ||||
| /s/ Marion Mariathasan | Director | September 22, 2022 | ||
| Marion Mariathasan |
EXHIBIT INDEX
| * | Filed herewith | |
| # | Denotes a management contract or compensatory plan or arrangement. |
Exhibit 5.1
GOLENBOCK EISEMAN ASSOR BELL & PESKOE LLP
711 Third Avenue – 17th Floor
New York, New York 10017
September 22, 2022
CEA Industries Inc.
385 South Pierce Avenue, Suite C
Louisville, Colorado 80027
Ladies and Gentlemen:
We have acted as counsel for CEA Industries Inc., a Nevada corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on Form S-1 (the “Registration Statement”), including a related prospectus filed with the Registration Statement (the “Prospectus”), with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), covering issuances by the Company of up to 6,863,365 shares (the “Shares”) of Common Stock par value $0.00001 per share (the “Common Stock”), upon the exercise from time to time of Public Warrants and Underwriter Warrants issued February 10, 2022 (the “Warrants”). The terms of the Public Warrant are governed by the warrant instrument and the form of Warrant Agency Agreement between the Company and Continental Stock Transfer and Trust Company, dated February 10, 2022 (the “Warrant Agreement”). The terms of the Underwriter Warrants are governed by the warrant instrument issued to the holders thereof on February 10, 2022. The Shares are to be sold by the Company as set forth in the Prospectus. This opinion is being rendered in connection with the filing of the Registration Statement with the Commission.
In connection with this opinion, we have examined originals or copies (certified or otherwise identified to our satisfaction) of (i) the Company’s Certificate of Incorporation as currently in effect, filed as Exhibit 3.1(a)-(g) to the Registration Statement, (ii) the Company’s Bylaws as currently in effect, filed as Exhibit 3.2 to the Registration Statement, (iii) the Registration Statement and related Prospectus, (iv) the form of warrant instrument for the Public Warrant and the Warrant Agreement, (v) the form of warrant instrument for the Underwriter Warrant, and (vi) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials or of officers and representatives of the Company, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies, and the authenticity of the originals of such latter documents. We have also assumed that the authorization of the board of directors of the Company is not changed. We also assume that each Public Warrant and the Underwriter Warrant and the exercise thereof are duly executed by each of the parties thereto. We further assume that prior to the issuance of the Common Stock upon the exercise of a Public Warrant or an Underwriter Warrant, that the exercise has been in accordance with the terms of the Public Warrant and Warrant Agreement or Underwriter Warrant, as the case may be, and that the Company has received full consideration for the Common Stock to be issued upon such exercise. As to certain questions of fact material to this opinion, we have relied upon certificates or comparable documents of officers and representatives of the Company and have not sought to independently verify such facts.
Based on the foregoing, and subject to the assumptions, limitations and qualifications stated herein, we are of the opinion that the Shares when issued and sold as contemplated in the Registration Statement and the related Prospectus and upon full and proper payment therefore and delivery thereof, will be validly issued, and the Shares will be fully paid and non-assessable.
The opinion expressed herein is limited to the General Corporation Law of the State of Nevada, assuming that the corporate law of the State of Nevada is the same as the corporate law of the State of New York, and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.
We hereby consent to the filing of this letter as an exhibit to the Registration Statement and to the reference to our firm under the caption “Legal Matters” in the Prospectus which is a part of the Registration Statement. In giving such consents, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission promulgated thereunder.
| Very truly yours, | |
| /s/ Golenbock Eiseman Assor Bell & Peskoe LLP | |
| Golenbock Eiseman Assor Bell & Peskoe LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
CEA Industries Inc.
Louisville, CO
We hereby consent to the incorporation by reference of our report dated March 29, 2022, with respect to the consolidated financial statements of CEA Industries Inc. as of and for the years ended December 31, 2021 and 2020 in this registration statement on Form S-1 relating to the registration of up to 6,863,365 shares of Common Stock to be issued upon the exercise of up to 6,863,365 Public Warrants and Underwriter Warrants. We also consent to the reference of our firm under the caption “Experts” in this registration statement.
/s/ Sadler, Gibb & Associates, LLC
Draper, UT
September 22, 2022