NextPlat Corp S-4/A, filed Jul 16, 2024
NextPlat Corp (NXPL)
As filed with the U.S. Securities and Exchange Commission on July 16, 2024
Registration No. 333-280324
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEXTPLAT CORP
(Exact name of registrant as specified in its charter)
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Nevada |
6770 |
65-0783722 |
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(State or other jurisdiction of |
(Primary Standard Industrial |
(I.R.S. Employer |
3250 Mary Street, Suite 410
Coconut Grove, FL 33133
(305) 560-5355
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Charles M. Fernandez, Chief Executive Officer
NextPlat Corp
3250 Mary Street, Suite 410
Coconut Grove, FL 33133
(305) 560-5355
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Ralph V. De Martino, Esq. Marc Rivera, Esq. Washington, DC 20006 Telephone: (202) 857-6000 |
Joseph M. Lucosky, Esq. Scott E. Linsky, Esq. Lucosky Brookman LLP 101 Wood Avenue South; 5th Floor |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement and the satisfaction or waiver of all other conditions under the Merger Agreement described herein.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, 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, 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 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.
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Large accelerated filer |
☐ |
Accelerated filer |
☐ |
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Non-accelerated filer |
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Smaller reporting company |
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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. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
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Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
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Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
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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, as amended, 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.
Explanatory Note
This pre-effective Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-280324) of NextPlat Corp is being filed for the sole purpose of filing Exhibits 5.1, 8.1, 99.3, and 99.4. Accordingly, Part I has been omitted from this filing.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Neither our Amended and Restated Articles of Incorporation (as amended) nor our Amended and Restated Bylaws prevent us from indemnifying our officers, directors and agents to the extent permitted under the Nevada Revised Statutes. NRS Section 78.7502, provides that a corporation may indemnify any director, officer, employee or agent of a corporation against expenses, including fees, actually and reasonably incurred by him in connection with any defense to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to Section 78.7502(1) or 78.7502(2), or in defense of any claim, issue or matter therein.
NRS 78.7502(1) provides that a corporation may 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, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that he 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, partnership, joint venture, trust or other enterprise, against expenses, including fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith and in a manner which 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.
NRS Section 78.7502(2) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he 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, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and fees actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals there from, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
NRS Section 78.747 provides that except as otherwise provided by specific statute, no director or officer of a corporation is individually liable for a debt or liability of the corporation, unless the director or officer acts as the alter ego of the corporation. The court as a matter of law must determine the question of whether a director or officer acts as the alter ego of a corporation.
Our Amended and Restated Articles of Incorporation (as amended) provides that we will indemnify our directors, officers, employees and agents to the extent and in the manner permitted by the provisions of the NRS, as amended from time to time, subject to any permissible expansion or limitation of such indemnification, as may be set forth in any stockholders’ or directors’ resolution or by contract. Any repeal or modification of these provisions approved by our stockholders will be prospective only and will not adversely affect any limitation on the liability of any of our directors or officers existing as of the time of such repeal or modification. We are also permitted to apply for insurance on behalf of any director, officer, employee or other agent for liability arising out of his actions, whether or not the NRS would permit indemnification.
Our Amended and Restated Bylaws provide that a director or officer of the Company shall have no personal liability to the Company or its stockholders for damages for breach of fiduciary duty as a director or officer, except for damages for breach of fiduciary duty resulting from (a) acts or omissions which involve intentional misconduct, fraud, or a knowing violation of law, or (b) the payment of dividends in violation of section 78.3900 of the NRS as it may from time to time be amended or any successor provision thereto.
Item 21. Exhibits and Financial Statements Schedules
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Exhibit No. |
Description |
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2.1# |
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3.1 |
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3.2 |
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3.3 |
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3.4 |
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3.5 |
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3.6 |
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4.1 |
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4.2 |
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4.3 |
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4.4 |
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Exhibit No. |
Description | |||
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4.5 |
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4.6 |
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5.1* |
Opinion of ArentFox Schiff LLP regarding the validity of the NextPlat securities. |
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| 8.1* | Tax Opinion of ArentFox Schiff LLP | |||
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10.1 |
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10.2 |
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10.3+ |
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10.4+ |
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10.5+ |
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10.6 |
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10.7 |
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10.8 |
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10.9 |
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10.10 |
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Exhibit No. |
Description |
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10.11 |
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10.12 |
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10.13 |
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10.14 |
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10.15 |
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10.16 |
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10.17 |
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10.18 |
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10.19+ |
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10.20+ |
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10.21+ |
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Exhibit No. |
Description | |||
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10.22+ |
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10.23+ |
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10.24+ |
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10.25 |
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10.26+ |
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10.27+ |
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10.28+ |
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10.29+ |
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Exhibit No. |
Description |
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10.30+ |
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10.31+ |
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10.32+ |
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10.33+ |
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10.34 |
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10.35 |
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10.36 |
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10.37+ |
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10.38+ |
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10.39+ |
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10.40+ |
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10.41+ |
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10.42+ |
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10.43+ |
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Exhibit No. |
Description |
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10.44+ |
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10.45+ |
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10.46+ |
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10.47+ |
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10.48+ |
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10.49+ |
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10.50+ |
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10.51+ |
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10.52+ |
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10.53+ |
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10.54 |
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Exhibit No. |
Description | |
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10.55 |
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10.56+ |
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10.57+ |
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10.58+ |
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10.59+ |
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10.60+ |
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Exhibit No. |
Description |
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10.61+ |
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10.62+ |
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10.63+ |
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10.64+ |
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10.65+ |
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10.66+ |
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10.67+ |
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10.68+ |
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10.69+ |
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Exhibit No. |
Description | |
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10.70+ |
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10.71+ |
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10.72+ |
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10.73 |
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10.74 |
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10.75 |
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Exhibit No. |
Description |
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10.76+ |
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10.77+ |
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10.78 |
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10.79 |
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10.80 |
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10.81 |
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10.82 |
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10.83 |
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10.84 |
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10.85+ |
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Exhibit No. |
Description | ||
| 99.5† | Consent of Steen Valuation Group | ||
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101.ins† |
Inline XBRL Instance Document |
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101.sch† |
Inline XBRL Taxonomy Schema Document |
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101.cal† |
Inline XBRL Taxonomy Calculation Document |
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101.def† |
Inline XBRL Taxonomy Linkbase Document |
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101.lab† |
Inline XBRL Taxonomy Label Linkbase Document |
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101.pre† |
Inline XBRL Taxonomy Presentation Linkbase Document |
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104† |
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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107† |
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+ |
Indicates management contract or compensatory plan or arrangement. |
| † | Previously filed |
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* |
Filed herewith |
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# |
Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601. The Registrant agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request. |
Item 22. Undertakings
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a. |
The undersigned registrant hereby undertakes: |
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i. |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(1) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
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(2) |
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 |
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(3) |
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; |
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ii. |
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. |
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iii. |
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. |
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iv. |
That, for the purpose of determining liability under the Securities Act to any purchaser, 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. |
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v. |
That, 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: |
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(1) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
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(2) |
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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(3) |
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 |
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(4) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
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vi. |
The undersigned registrant hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to re-offerings by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable Form. |
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vii. |
The undersigned registrant hereby undertakes as follows: that every prospectus (i) that is filed pursuant to the paragraph immediately preceding, or (ii) that purports to meet the requirements of section 10(a)(3) of the Securities Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes 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. |
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viii. |
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. |
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b. |
The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. |
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c. |
The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
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-4 and has duly caused this registration statement to be signed on its behalf by the undersigned thereunto duly authorized, in Coconut Grove, State of Florida, on July 16, 2024.
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NEXTPLAT CORP |
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By: |
/s/ Charles M. Fernandez |
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Name: |
Charles M. Fernandez |
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Title: |
Chief Executive Officer and Executive Chairman of the Board |
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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:
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Signature |
Title |
Date |
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/s/ Charles M. Fernandez |
Chief Executive Officer and Executive |
July 16, 2024 |
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Charles M. Fernandez |
Chairman of the Board (Principal Executive Officer) |
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* |
Vice Chairman and Chief Business |
July 16, 2024 | ||
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Douglas S. Ellenoff |
Development Strategist |
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/s/ Cecile Munnik |
Chief Financial Officer |
July 16, 2024 | ||
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Cecile Munnik |
(Principal Financial Officer) |
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* |
Director and President of NextPlat, Chief |
July 16, 2024 | ||
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David Phipps |
Executive Officer of Global Operations |
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/s/ Robert Bedwell |
Chief Compliance Officer |
July 16, 2024 | ||
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Robert Bedwell |
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* |
Director |
July 16, 2024 | ||
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Hector Delgado |
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* |
Director |
July 16, 2024 | ||
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John Miller |
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* |
Director |
July 16, 2024 | ||
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Kendall Carpenter |
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* |
Director |
July 16, 2024 | ||
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Louis Cusimano |
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* |
Director |
July 16, 2024 | ||
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Rodney Barreto |
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* |
Director |
July 16, 2024 | ||
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Maria Cristina Fernandez |
| *By: | /s/ Cecile Munnik | ||
| Attorney-in-fact |
Exhibit 5.1
July 16, 2024
NextPlat Corp
3250 Mary St., Suite 410
Coconut Grove, FL 33133
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as counsel to NextPlat Corp, a Nevada corporation (the “Company”), in connection with the Registration Statement on Form S-4, initially filed by the Company with the Securities and Exchange Commission (the “Commission”) on June 20, 2024, as amended through the date hereof, pursuant to the Securities Act of 1933, as amended (the “Securities Act”) (such Registration Statement, as amended or supplemented, is hereafter referred to as the “Registration Statement”), relating to the Merger Agreement and Plan of Reorganization, dated April 12, 2024 filed as Exhibit 2.1 to the Registration Statement (as it may be further amended, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among the Company, Progressive Care LLC, a Nevada limited liability company and a direct wholly owned subsidiary of the Company (“Merger Sub”), and Progressive Care Inc., a Delaware corporation (“Progressive Care”), pursuant to which Progressive Care would merge with and into Merger Sub (the “Merger”), with Merger Sub surviving the Merger as a wholly owned subsidiary of the Company (the time that the Merger becomes effective being referred to as the “Effective Time”).
At the Effective Time, among other things, each issued and outstanding share of Progressive Care Common Stock, par value $0.001 per share, will be converted into 1.4865 shares of duly authorized, validly issued, fully paid and nonassessable common stock, par value $0.0001 per share, of the Company (the “Company Common Stock”).
The Registration Statement relates to the registration of the offer and sale of up to 6,744,503 shares of NextPlat Common Stock to be issued to the equity holders of Progressive Care in connection with the Merger (the “Consideration Shares”).
In rendering the opinions set forth below, we examined and relied upon such certificates, corporate records, agreements, instruments and other documents, and examined such matters of law, that we considered necessary or appropriate as a basis for the opinions. In rendering the opinions set forth below, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of (i) the Business Combination Agreement, (ii) the Registration Statement, (iii) the Amended and Restated Articles of Incorporation and the Amended and Restated Bylaws of the Company, each as amended to date, (iii) resolutions of the Board of Directors of the Company relating to, among other matters, approval of the Business Combination Agreement, the issuance of the Consideration Shares, and the filing of the Registration Statement, and (iv) such other documents as we have deemed necessary or appropriate as a basis for the opinions set forth below. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, the authenticity of the originals of such latter documents, that all parties to such documents (other than the Company) had the power, corporate or other, to enter into and perform all obligations thereunder and all such documents have been duly authorized by all requisite action, corporate or other, and duly executed and delivered by all parties thereto (other than the Company). As to any facts material to the opinions expressed herein that we did not independently establish or verify, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others. In rendering the opinions set forth below, we have further assumed that (i) the Registration Statement will have become effective under the Securities Act and (ii) the conditions to consummating the transactions contemplated by the Business Combination Agreement will have been satisfied or duly waived and such transactions are consummated.
Based upon the foregoing and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that:
1. The Consideration Shares to be issued pursuant to the Business Combination Agreement have been duly authorized by all necessary corporate action of the Company.
2. Upon the issuance and delivery of the Consideration Shares in the manner contemplated by the Business Combination Agreement, and assuming the Company completes all actions and proceedings required on its part to be taken prior to the issuance and delivery of the Consideration Shares pursuant to the terms of the Business Combination Agreements, including, without limitation, the Consideration Shares will be validly issued, fully paid and non-assessable.
The opinions set forth above are subject to the following qualifications:
A. The foregoing opinions are limited to the Federal law of the United States and Chapter 78 of the Nevada Revised Statutes (including the statutory provisions and all applicable provisions of the Nevada Constitution and the reported judicial cases interpreting those laws currently in effect), and we express no opinion as to the laws of any other jurisdiction.
The opinions expressed in this opinion letter are as of the date of this opinion letter only and as to laws covered hereby only as they are in effect on that date, and we assume no obligation to update or supplement such opinion to reflect any facts or circumstances that may come to our attention after that date or any changes in law that may occur or become effective after that date. The opinions herein are limited to the matters expressly set forth in this opinion letter, and no opinion or representation is given or may be inferred beyond the opinions expressly set forth in this opinion letter.
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to us under the caption “Legal Matters” in the proxy statement/prospectus contained in the Registration Statement, and to the reference to us under the caption “Legal Matters” in the Proxy Statement/Prospectus to be disseminated pursuant to the Registration Statement following the effective date of the Registration Statement. In giving this consent, we do not thereby admit that we are within 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/ ArentFox Schiff LLP
ArentFox Schiff LLP
Exhibit 8.1
July 16, 2024
NextPlat Corp
3250 Mary Street, Suite 410
Coconut Grove, FL 33133
Re: Opinion Regarding Material Federal Income Tax Consequences of Merger
Ladies and Gentlemen:
We have acted as counsel to NextPlat Corp, a Nevada corporation (“Parent”), in connection with the negotiation and execution of a Merger Agreement and Plan of Reorganization, dated as of April 12, 2024, by and among Parent, Progressive Care LLC, a Nevada limited liability company and a direct, wholly owned subsidiary of Parent (“Merger Sub”), and Progressive Care Inc., a Delaware corporation (“Company”) (the “Agreement”), pursuant to which Company will merge with and into Merger Sub with Merger Sub surviving the merger (the “Merger”).
The Merger is described in the Registration Statement on Form S-4 under the Securities Act of 1933, as amended (the “Securities Act”), filed on June 20, 2024, as amended through the date hereof (the “Registration Statement”). Capitalized terms used but not defined herein have the meaning given to such terms in the Registration Statement.
We have reviewed the Agreement, including all exhibits thereto, the Registration Statement, and such other documents and records as we deemed necessary or appropriate for purposes of issuing our opinion (collectively, the “Documents”). In our examination of the Documents, we have assumed their completeness and authenticity, and we have further assumed that each of the Documents has been or will be duly authorized and executed in the form as examined by us and will be binding upon all parties thereto. We are relying expressly for purposes of our opinion on the facts, information, representations, warranties and covenants contained in the Documents. In addition, we are relying expressly upon additional representations of fact made by Company in a letter dated the date hereof and by Parent and Merger Sub in a letter dated the date hereof, delivered to us in connection with our opinion (collectively, the “Representation Certificates”), as well as facts learned in discussions with certain officers of Parent and certain other assumptions stated herein. We are relying upon the accuracy of any representations or statements made that are qualified by the maker’s knowledge or belief as if such representations or statements were made without such qualification. We have also assumed that as to all matters for which a person or entity has represented that such person or entity is not a party to, does not have, or is not aware of, any plan, intention, understanding, or agreement, there is no such plan, intention, understanding, or agreement. We have not been asked to and have not attempted to verify any facts, information, warranties or representations (collectively “statements”) through independent investigation and are assuming that each is true, correct and complete as of the date hereof and that no actions inconsistent with such statements have occurred or will occur.
In connection with our opinion, we have assumed that the Merger will be effected and consummated in accordance with the terms and conditions of the Agreement, including satisfaction of all material covenants and conditions to the obligations of the parties without amendment or waiver thereof. We have also assumed that none of the parties will take any action after the Merger that would cause the Merger not to qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”).
Based on and subject to the foregoing, including, without limitation, the qualifications, exceptions and assumptions set forth above and the exceptions, qualifications and limitations set forth below, it is our opinion that (i) the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code and (ii) the statements in the Registration Statement set forth under the caption “Material U.S. federal income tax consequences of the merger,” to the extent that they constitute descriptions or summaries of material U.S. federal income tax considerations of the Merger are accurate in all material respects.
We express no opinion as to the tax treatment of the Merger under the provisions of any other sections of the Code or under any state, local or foreign tax laws that also may be applicable thereto, nor do we express any opinion in this letter as to non-tax issues such as corporate law or securities law matters. In addition, we express no opinion as to the tax treatment of any conditions existing at the time of, or effects resulting from, transactions that are not specifically addressed herein.
Our opinion represents our legal judgment as to the described federal income tax consequences of the Merger. Our opinion is based upon the Code, the Income Tax Regulations promulgated thereunder, and administrative and judicial determinations, all as of the date hereof and all of which are subject to change either prospectively or retroactively. In addition, our opinion is based upon our knowledge of the facts as of the date hereof. If (i) the relevant facts at the time of closing differ from those represented to us in the Representation Certificates or reflected in the Documents, (ii) the Merger is completed under terms not contained in the Agreement, (iii) our assumptions prove to be untrue, or (iv) the existing authorities are modified by legislative, administrative or judicial action, our conclusions may differ and our opinion may not be relied upon. Furthermore, by rendering this opinion, we undertake no responsibility to provide a revised opinion or other advice, and we assume no duty to communicate with you with respect to any new developments in the application or interpretation of the federal income tax laws.
You should be aware that no ruling has been sought or obtained from the Internal Revenue Service (the “Service”) as to the federal income tax consequences of any aspect of the Merger and that our opinion is not binding on the Service. You should also be aware that there can be no assurance, and none is hereby given, that the Service will not take a position contrary to the position reflected in our opinion, or that our opinion will be upheld by the courts if challenged by the Service.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the Registration Statement. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ ArentFox Schiff LLP
ArentFox Schiff LLP
Exhibit 99.3
CONSENT OF ANTHONY ARMAS
In connection with the filing by NextPlat Corp of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors for NextPlat Corp in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: July 15, 2024 |
Anthony Armas |
/s/ Anthony Armas |
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Signature |
Exhibit 99.4
CONSENT OF JERVIS BENNETT HOUGH
In connection with the filing by NextPlat Corp of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors for NextPlat Corp in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
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Dated: July 15, 2024 |
Jervis Bennett Hough |
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/s/ Jervis Bennett Hough |
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Signature |