AgEagle Aerial Systems Inc S-3/A, filed May 25, 2021
AgEagle Aerial Systems Inc. (UAVS)
As filed with the Securities and Exchange Commission on May 25, 2021
Registration No. 333-255940
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
(Amendment No.1)
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AGEAGLE AERIAL SYSTEMS INC.
(Exact name of registrant as specified in its charter)
| Nevada | 88-0422242 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
8833 E. 34th Street North
Wichita, Kansas 67226
Tel. No. (620) 325-6363
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Nicole Fernandez-McGovern
Chief Financial Officer
AgEagle Aerial Systems, Inc.
8833 E. 34th Street North,
Wichita, Kansas 67226
Tel. No. (620) 325-6363
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Mitchell S. Nussbaum, Esq.
Tahra Wright, Esq.
Loeb & Loeb LLP
345 Park Avenue
New York, NY 10154
Tel. No. (212) 407-4000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box ☒
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, 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 of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the SEC pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company. See definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company,” or an “emerging growth company” (check one):
| Large accelerated filer ☐ | Accelerated filer ☐ | Non-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 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, 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 Amendment No. 1 (this “Amendment”) to the Registration Statement on Form S-3 of AgEagle Aerial Systems Inc. filed on May 10, 2021 (the “Registration Statement”), is being filed as an exhibit-only filing to file the opinion of Sherman & Howard L.L.C., filed herewith as Exhibit 5.1 (the “Opinion”). Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 16 of Part II of the Registration Statement, the signature page to the Registration Statement and the Opinion filed herewith as Exhibit 5.1. The prospectus and the balance of Part II of the Registration Statement are unchanged and have been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. Exhibits.
The attached Exhibit Index is filed herein or incorporated herein by reference.
EXHIBIT INDEX
| Exhibit Number |
Description | |
| 5.1 | Opinion of Sherman & Howard | |
| 10.1 | Stock Purchase Agreement dated January 26, 2021 by and among AgEagle Aerial Systems, Inc., AgEagle Sensor Systems, Inc., a wholly-owned subsidiary of the Company, Parrot Drones S.A.S. and Justin B. McAllister Incorporated by reference to the Current Report on Form 8-K as filed with the SEC on January 27, 2021)* | |
| 23.1 | Consent of D. Brooks and Associates CPAs, P.A., an independent registered public accounting firm* | |
| 23.2 | Consent of WithumSmith+Brown, PC, an independent registered public accounting firm* | |
| 23.3 | Consent of WithumSmith+Brown, PC, an independent auditor* | |
| 23.4 | Consent of Salberg & Company, PA, an independent registered public accounting firm* | |
| 23.5 | Consent of Morison Cogen LLP, an independent registered public accounting firm* | |
| 23.6 | Consent of Sherman & Howard LLP (included in Exhibit 5.1) | |
| 24.1 | Power of Attorney (included in the signature page hereto)* | |
* Previously filed
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wichita, State of Kansas, on May 25, 2021.
| AGEAGLE AERIAL SYSTEMS INC. | ||
| By: | /s/ Nicole Fernandez McGovern | |
| Name | Nicole Fernandez-McGovern | |
| Title: | Chief Financial Officer (principal financial officer) | |
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/ J Brandon Torres Declet | Chief Executive Officer and Director | May 25, 2021 | ||
| Brandon Torres Declet | (Principal Executive Officer) | |||
| /s/ Nicole Fernandez-McGovern | Chief Financial Officer (Principal Financial | May 25, 2021 | ||
| Nicole Fernandez-McGovern | and Accounting Officer) | |||
| * | Chairman of the Board | May 25, 2021 | ||
| Barrett Mooney | ||||
| * | Director | May 25, 2021 | ||
| Grant Begley | ||||
| * | Director | May 25, 2021 | ||
| Thomas Gardner | ||||
| * | Director | May 25, 2021 | ||
| Louis Ingargiola | ||||
| * /s/ Nicole Fernandez-McGovern | ||||
| Attorney-in-Fact |
II-4
Exhibit 5.1
| 50
West Liberty Street, Suite 1000, Reno, Nevada 89501-1950 Telephone: 775-323-1980 Fax: 775-323-2339 |
3960
Howard Hughes Parkway, Suite 500, Las Vegas, Nevada 89169 Telephone: 702-387-6073 Fax: 702-990-3564 |
| www.shermanhoward.com | |
May 24, 2021
AgEagle Aerial Systems Inc.
8833 East 34th Street North
Wichita, Kansas 67226
Re: AgEagle Aerial Systems Inc./Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special Nevada counsel to AgEagle Aerial Systems Inc., a Nevada corporation (the “Company”), in connection with the registration by the Company of 540,541 shares (the “Shares”) of common stock, par value $0.001 par value per share (the “Common Stock”) to be sold by certain selling stockholders (“Selling Stockholders”) of the Company under a Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), as filed with the Securities and Exchange Commission (the “Commission”).
For purposes of these opinions, we have examined the Registration Statement and originals or copies, certified or otherwise identified to our satisfaction, of corporate records of the Company, certificates, forms of agreements, resolutions of the Board of Directors of the Company, and such other matters as relevant related to the issuance and the registration of the Shares under the Securities Act as we have deemed necessary or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed:
(a) the legal capacity of all natural persons executing the documents;
(b) the genuineness of all signatures on the documents;
(c) the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as copies;
(d) that the parties to such documents, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder; and
(e) other than with respect to the Company, the due authorization by all requisite action, corporate or other, the execution and delivery by all parties of the documents, and the validity and binding effect thereof on such parties.
On the basis of the foregoing and in reliance thereon, and subject to the assumptions, limitations, and qualifications set forth herein, we are of the opinion that the Shares have been duly authorized, and are validly issued, fully paid, and are nonassessable.
The opinions expressed herein are limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or any changes in applicable law that may come to our attention subsequent to the date the Registration Statement is declared effective.
While certain members of this firm are admitted to practice in certain jurisdictions other than Nevada, in rendering the foregoing opinions we have not examined the laws of any jurisdiction other than Nevada. Accordingly, the opinions we express herein are limited to matters involving the laws of the State of Nevada (excluding securities laws). We express no opinion regarding the effect of the laws of any other jurisdiction or state, including any federal securities laws related to the issuance and sale of the Shares.
We hereby consent to the use of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Registration Statement and in the Prospectus forming a part thereof and any supplement thereto. In giving the foregoing consent, we do not hereby 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 thereunder.
| Very truly yours, | |
| /s/ Sherman & Howard L.L.C. | |
| SHERMAN & HOWARD L.L.C. |