AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON April 24,
2018
REGISTRATION NO. 333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
NOVUME SOLUTIONS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of incorporation or
organization)
81-5266334
I.R.S.
Employer Identification Number
14420 Albemarle Point Place
Suite 200
Chantilly, VA 20151
Telephone: (703) 953-3838
(Address,
including zip code, and telephone number, including area code of
registrant’s principal executive offices)
Corporation Trust Company
1209 Orange Street
Wilmington, DE 19801
(302) 658-7581
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Thomas Rose, Esq.
Marcelle S. Balcombe, Esq.
Sichenzia Ross Ference Kesner LLP
1185 Avenue of the Americas, 37th Floor
New York, NY 10036
(212) 930-9700
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 plants, 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 and list the Securities Act registration statement number
of the earlier effective registration statement for the same
offering. ☐
If this
Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box.
☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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☐
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Large
accelerated filer
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☐
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Accelerated
filer
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☐
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Non-accelerated
filer (Do not check if a smaller reporting company)
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☒
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Smaller
reporting company
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☐
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Emerging
growth company
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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.
☐
CALCULATION OF REGISTRATION FEE
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Title of each class of Securities to be registered
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Amount to be registered
(1)
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Proposed maximum offering price per unit
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Proposed maximum aggregate offering price
(2)
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Amount of registration fee
(3)
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Common
stock, par value $0.0001 per share
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-
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$-
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$-
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$-
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Preferred
stock, par value $0.0001 per share
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-
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-
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-
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-
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Warrants
(4)
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-
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-
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-
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-
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Units
(5)
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-
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-
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-
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-
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Total
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-
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$100,000,000
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$12,450.00
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(1)
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There
are being registered hereunder such indeterminate number of shares
of common stock, preferred stock, and warrants to purchase common
stock or preferred stock, as shall have an aggregate initial
offering price not to exceed $100,000,000. The securities
registered also include such indeterminate amounts and numbers of
common stock and preferred stock as may be issued upon conversion
of or exchange for preferred stock that provide for conversion or
exchange, upon exercise of warrants, or pursuant to the
anti-dilution provisions of any such securities.
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(2)
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In no
event will the aggregate offering price of all securities issued
from time to time pursuant to this registration statement exceed
$100,000,000.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities Act. The total amount
is being paid herewith.
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(4)
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Includes
warrants to purchase common stock and warrants to purchase
preferred stock.
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(5)
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Any of
the securities registered hereunder may be sold separately, or as
units with other securities registered hereby. We will determine
the proposed maximum offering price per unit when we issue the
above listed securities. The proposed maximum per unit and
aggregate offering prices per class of securities will be
determined from time to time by the registrant in connection with
the issuance by the registrant of the securities registered under
this registration statement and is not specified as to each class
of security pursuant to General Instruction II.D of Form S-3 under
the Securities Act.
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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 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement relating to these securities that has been filed with the
Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale
is not permitted.
(Subject to Completion, Dated April 24, 2018)
PROSPECTUS
$100,000,000
Common Stock
Preferred Stock
Warrants
Units
We may
from time to time, in one or more offerings at prices and on terms
that we will determine at the time of each offering, sell common
stock, preferred stock, warrants, or a combination of these
securities, or units, for an aggregate initial offering price of up
to $100,000,000. This prospectus describes the general manner in
which our securities may be offered using this prospectus. Each
time we offer and sell securities, we will provide you with a
prospectus supplement that will contain specific information about
the terms of that offering. Any prospectus supplement may also add,
update, or change information contained in this prospectus. You
should carefully read this prospectus and the applicable prospectus
supplement as well as the documents incorporated or deemed to be
incorporated by reference in this prospectus before you purchase
any of the securities offered hereby.
This
prospectus may not be used to offer and sell securities unless
accompanied by a prospectus supplement.
Our
common stock is currently traded on the NASDAQ Capital Market under
the symbol “NVMM.” Our
Series A Preferred Stock and Unit Warrant are quoted on the OTCQX
under the trading symbols “NVMMP,” and
“NVMMW,” respectively. On April 23, 2018, the
last reported sales price for our common stock was $2.55 per share.
We will apply to list any shares of common stock sold by us under
this prospectus and any prospectus supplement on the NASDAQ Capital
Market. The prospectus supplement will contain information, where
applicable, as to any other listing of the securities on the NASDAQ
Capital Market or any other securities market or exchange covered
by the prospectus supplement.
The securities offered by this prospectus involve a high degree of
risk. See “Risk Factors” beginning on page 3, in
addition to Risk Factors contained in the applicable prospectus
supplement.
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.
We may
offer the securities directly or through agents or to or through
underwriters or dealers. If any agents or underwriters are involved
in the sale of the securities their names, and any applicable
purchase price, fee, commission or discount arrangement between or
among them, will be set forth, or will be calculable from the
information set forth, in an accompanying prospectus supplement. We
can sell the securities through agents, underwriters or dealers
only with delivery of a prospectus supplement describing the method
and terms of the offering of such securities. See “Plan of
Distribution.”
This
prospectus is dated ___________, 2018
Table of Contents
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Page
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ABOUT THIS PROSPECTUS
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1
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
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1
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ABOUT NOVUME
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2
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RISK FACTORS
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3
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USE OF PROCEEDS
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3
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DESCRIPTION OF CAPITAL STOCK
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3
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DESCRIPTION OF WARRANTS
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10
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DESCRIPTION OF UNITS
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11
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PLAN OF DISTRIBUTION
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12
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LEGAL MATTERS
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14
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EXPERTS
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14
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WHERE YOU CAN FIND MORE INFORMATION
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14
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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15
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You should rely only on the information contained or incorporated
by reference in this prospectus or any prospectus supplement. We
have not authorized anyone to provide you with information
different from that contained or incorporated by reference into
this prospectus. If any person does provide you with information
that differs from what is contained or incorporated by reference in
this prospectus, you should not rely on it. No dealer, salesperson
or other person is authorized to give any information or to
represent anything not contained in this prospectus. You should
assume that the information contained in this prospectus or any
prospectus supplement is accurate only as of the date on the front
of the document and that any information contained in any document
we have incorporated by reference is accurate only as of the date
of the document incorporated by reference, regardless of the time
of delivery of this prospectus or any prospectus supplement or any
sale of a security. These documents are not an offer to sell or a
solicitation of an offer to buy these securities in any
circumstances under which the offer or solicitation is
unlawful.
i
This
prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or SEC, using a
“shelf” registration process. Under this shelf
registration process, we may sell any combination of the securities
described in this prospectus in one or more offerings up to a total
dollar amount of proceeds of $100,000,000. This prospectus
describes the general manner in which our securities may be offered
by this prospectus. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about
the terms of that offering. The prospectus supplement may also add,
update or change information contained in this prospectus or in
documents incorporated by reference in this prospectus. The
prospectus supplement that contains specific information about the
terms of the securities being offered may also include a discussion
of certain U.S. Federal income tax consequences and any risk
factors or other special considerations applicable to those
securities. To the extent that any statement that we make in a
prospectus supplement is inconsistent with statements made in this
prospectus or in documents incorporated by reference in this
prospectus, you should rely on the information in the prospectus
supplement. You should carefully read both this prospectus and any
prospectus supplement together with the additional information
described under “Where You Can Find More Information”
before buying any securities in this offering.
Unless
the context otherwise requires, references to “we,”
“our,” “us,” “Novume,”
“Novume Solutions” or the “Company” in this
prospectus mean Novume Solutions, Inc., a Delaware
corporation.
Our name, our logo, and our other trademarks or
service marks appearing in this prospectus are the property of
Novume Solutions, Inc. and its
subsidiaries. Solely for convenience,
trademarks and trade names referred to in this prospectus,
including logos, artwork and other visual displays, may appear
without the ® or TM symbols, but such references are not
intended to indicate, in any way, that their respective owners will
not assert, to the fullest extent under applicable law, their
rights thereto. We do not intend our use or display of other
companies' trade names or trademarks to imply a relationship with,
or endorsement or sponsorship of us by, any other
companies.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
This
prospectus and the documents and information incorporated by
reference in this prospectus include forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as
amended, or the Securities Act, and Section 21E of the Securities
Exchange Act of 1934, as amended, or the Exchange Act. These
statements are based on our management’s beliefs and
assumptions and on information currently available to our
management. Such forward-looking statements include those that
express plans, anticipation, intent, contingency, goals, targets or
future development and/or otherwise are not statements of
historical fact.
All
statements in this prospectus and the documents and information
incorporated by reference in this prospectus that are not
historical facts are forward-looking statements. We may, in some
cases, use terms such as “anticipates,”
“believes,” “could,”
“estimates,” “expects,”
“intends,” “may,” “plans,”
“potential,” “predicts,”
“projects,” “should,” “will,”
“would” or similar expressions or the negative of such
items that convey uncertainty of future events or outcomes to
identify forward-looking statements.
Forward-looking
statements are made based on management’s beliefs, estimates
and opinions on the date the statements are made and we undertake
no obligation to update forward-looking statements if these
beliefs, estimates and opinions or other circumstances should
change, except as may be required by applicable law. Although we
believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results,
levels of activity, performance or achievements.
1
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ABOUT NOVUME
Overview
We are
a leading provider of support services to the government
contracting market. Generally speaking, our clients are companies
that serve the government. We:
●
Capture business by
helping our clients to win government contracts.
●
Manage risk by being
prepared for, and responding to, disruptive events and creating
secure systems.
●
Run client back-end
services by providing various managed services.
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Perform their
contract requirements by providing specialized staffing services
primarily in the aerospace and aviation industries.
We
support the government contracting industry that:
●
Represented over
$439 billion of U.S. federal government spending in FY 2017
according to USASpending.gov.
●
Has proven to be
relatively recession resistant.
●
Has, according to
the U.S. federal government’s SAM database, as of March 23,
2018, over 529,000 government contractors of which approximately
52,000 are located in Washington, DC, Maryland and Virginia, many
of which are located in an area commonly known as the "Beltway" in
close proximity to our headquarters.
We see
the professional services support sector of the industry in which
we operate as:
●
Highly
fragmented
●
Comprised of
numerous small- and medium-sized businesses that are ripe for
consolidation.
We
believe these factors provide extraordinary growth opportunities
for us.
Corporate Information
Our principal executive offices are located at 14420 Albemarle
Point Place, Suite 200, Chantilly, Virginia 20151 and our telephone
number is (703) 953-3838. Our website address is
www.novume.com. The information on, or accessible through, our
website does not constitute a part of, and is not incorporated
into, this prospectus.
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2
RISK FACTORS
Investing
in our securities involves a high degree of risk. Before making an
investment decision, you should consider carefully the risks,
uncertainties and other factors described in our most recent Annual
Report on Form 10-K, as supplemented and updated by subsequent
quarterly reports on Form 10-Q and current reports on Form 8-K that
we have filed or will file with the SEC, which are incorporated by
reference into this prospectus.
Our
business, affairs, prospects, assets, financial condition, results
of operations and cash flows could be materially and adversely
affected by these risks. For more information about our SEC
filings, please see “Where You Can Find More
Information.”
USE OF PROCEEDS
Unless
otherwise indicated in a prospectus supplement, we intend to use
the net proceeds from the sale of the securities under this
prospectus for general corporate purposes. We may also use a
portion of the net proceeds to acquire or invest in businesses and
products that are complementary to our own, although we have no
current plans, commitments or agreements with respect to any
acquisitions as of the date of this prospectus.
DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock consists of 30,000,000 shares of
common stock, $0.0001 par value per share, and 2,000,000 shares of
preferred stock, $0.0001 par value per share.
As of April 24, 2018,
there were outstanding 14,531,697 shares of our common stock, held
by approximately 58 stockholders of record, and 1,520,780 shares of
our common stock issuable upon exercise of outstanding stock
options.
Common Stock
Dividend Rights
Subject to preferences that may apply to any shares of preferred
stock outstanding at the time, the holders of our common stock are
entitled to receive dividends out of funds legally available if our
Board of Directors, in its discretion, determines to issue
dividends and then only at the times and in the amounts that our
Board of Directors may determine.
Voting Rights
Holders of our common stock are entitled to one vote for each share
held on all matters submitted to a vote of stockholders. Our
Amended and Restated Certificate of Incorporation does not provide
for cumulative voting for the election of directors. As a result,
the holders of a majority of our voting shares can elect all of the
directors then standing for election.
No Preemptive or Similar Rights
Our common stock is not entitled to preemptive rights, and is not
subject to redemption or sinking fund provisions.
3
Right to Receive Liquidation Distributions
Upon our liquidation, dissolution or winding-up, the assets legally
available for distribution to our stockholders would be
distributable ratably among the holders of our common stock and any
participating preferred stock outstanding at that time, subject to
prior satisfaction of all outstanding debt and liabilities and the
preferential rights of and the payment of liquidation preferences,
if any, on any outstanding shares of preferred stock.
Preferred Stock
Pursuant to our Amended and Restated Certificate of Incorporation,
our Board of Directors is authorized, subject to limitations
prescribed by Delaware law, to issue preferred stock in one or more
series, to establish from time to time the number of shares to be
included in each series, and to fix the designation, powers,
preferences, and rights of the shares of each series and any of its
qualifications, limitations, or restrictions, in each case without
further vote or action by our stockholders. Our Board of Directors
can also increase or decrease the number of shares of any series of
preferred stock, but not below the number of shares of that series
then outstanding, without any further vote or action by our
stockholders. Our Board of Directors may authorize the issuance of
preferred stock with voting or conversion rights that could
adversely affect the voting power or other rights of the holders of
our common stock. The issuance of preferred stock, while providing
flexibility in connection with possible acquisitions and other
corporate purposes, could, among other things, have the effect of
delaying, deferring, or preventing a change in our control and
might adversely affect the market price of our common stock and the
voting and other rights of the holders of our common stock. We have
no current plan to issue any additional shares of preferred
stock.
Our
Board of Directors has designated 505,000 shares of our authorized
Preferred Stock as Series A Cumulative Convertible Redeemable
Preferred Stock (the “Series A Preferred
Stock”) and 240,861 shares of our authorized
Preferred Stock as Series B Cumulative Convertible Preferred
Stock (the “Series B Preferred
Stock”).
Series A Cumulative Convertible Redeemable Preferred Stock of
Novume
The following is a summary of certain material terms and provisions
of the Series A Preferred Stock. The following summary is subject
to, and qualified in its entirety by, the Certificate of
Designations of Series A Cumulative Convertible Redeemable
Preferred Stock (the “Novume Series A Preferred Stock
Certificate of Designations”). You should review a copy of
the Novume Series A Preferred Stock Certificate of Designations for
a complete description of the terms and conditions applicable to
the Series A Preferred Stock. As of April 24, 2018, there were 502,327 shares of
Series A Preferred Stock outstanding which are convertible into
811,514 shares of common stock.
Voting Rights
The holders of the Series A Preferred Stock shall not have any
voting rights except as expressly set forth below or as otherwise
from time to time required by law.
So long as any shares of Series A Preferred Stock are outstanding,
in addition to any other vote or consent of stockholders required
by law or by the our Certificate of Incorporation, the vote or
consent of the holders of a majority of the outstanding shares of
Series A Preferred Stock at the time outstanding and entitled to
vote thereon shall be necessary for effecting or validating, either
directly or indirectly by amendment, merger, consolidation or
otherwise:
●
any
amendment, alteration or repeal to our Certificate of Incorporation
or Bylaws which have an adverse effect on the rights, preferences,
privileges or voting powers of the Series A Preferred
Stock;
4
●
at
any time until November 8, 2018, (a) any declaration or
payment of cash dividends on any of our common stock or other stock
that is specifically designated as junior to the Series A Preferred
Stock; (b) any purchase, redemption or other acquisition for
consideration of any of our common stock or other junior stock,
whether directly or indirectly; or (c) if and only if Novume
is delinquent in the payment of dividends on Series A Preferred
Stock, any declaration or payment of cash dividends or purchase,
redemption or other acquisition for consideration of any class of
securities hereafter authorized that is specifically designated as
ranking pari passu with the Series A Preferred Stock, whether
directly or indirectly; provided, further, however, that the
consent of the holders of the Series A Preferred Stock shall not be
required in connection with any repurchase of any junior stock held
by any of our employee or consultant (x) upon any termination
of such employee’s or consultant’s employment or
consultancy pursuant to any agreement providing for such repurchase
or (y) otherwise permitted pursuant to an agreement between us
and an employee or consultant thereof; or
●
any
consummation of a binding share exchange or reclassification
involving the Series A Preferred Stock, or of a merger or
consolidation of Novume with another corporation or other entity,
unless in each case (a) the shares of Series A Preferred Stock
remain outstanding or, in the case of any such merger or
consolidation with respect to which we are not the surviving or
resulting entity, are converted into or exchanged for preference
securities of the surviving or resulting entity or its ultimate
parent, in each case, that is an entity organized and existing
under the laws of the United States of America, any state thereof
or the District of Columbia and (b) such shares of Series A
Preferred Stock remaining outstanding or such preference
securities, as the case may be, have such rights, preferences,
privileges and voting powers, and limitations and restrictions
thereof, taken as a whole, as are not less favorable to the holders
thereof than the rights, preferences, privileges and voting powers,
and limitations and restrictions thereof, of the Series A Preferred
Stock immediately prior to such consummation, taken as a whole;
provided, further, that no vote by the holders of Series A
Preferred Stock under the foregoing shall be required to the extent
a plan of merger, binding share exchange or similar event otherwise
provides that the holders of Series A Preferred Stock would receive
an amount of cash in such merger, share exchange or similar event
equal to the liquidation preference as of the consummation of such
merger, share exchange or similar event.
Dividends
Holders of the Series A Preferred Stock are entitled to quarterly
dividends of $0.175 (7% per annum) per share.
Conversion Rights
At any time after November 8, 2019, each holder of the Series A
Preferred Stock will have the right to convert each share of Series
A Preferred Stock into such number of fully paid and nonassessable
shares of Novume common stock as is determined by dividing
(i) the sum of (x) $10.00 (the “Series A Original
Issue Price” (as adjusted pursuant hereto for stock splits,
stock dividends, reclassifications and the
like)) plus (y) the
amount of any accrued but unpaid dividends on such shares being
converted, if any, whether or not declared, to and including the
date immediately prior to such date of conversion, by (ii) the
conversion price (the “Conversion Price”) applicable to
such share of Series A Preferred Stock, in effect on the date the
certificate is surrendered for conversion. The number of shares of
common stock into which each share is convertible, after taking
into account any such adjustments, is hereinafter referred to as
the “Conversion Ratio.” The Conversion Price shall be
(a) $7.22, from November 8, 2019 to November 7, 2020 or
(b) $7.74, from and after November 8,
2020.
5
The Series A Preferred Stock will automatically be converted at the
then effective conversion price (i) except as provided below,
immediately prior to the closing of Novume’s sale of its
common stock in a firm commitment underwritten public offering
pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the “Securities
Act”), (A) which results in aggregate cash proceeds to
us of not less than $30,000,000 (net of underwriting discounts and
commissions), (B) is made at an offering price per share of at
least the then applicable conversion price (as adjusted) and
(C) following such offering, the Novume common stock is listed
for trading on a national securities exchange, and (ii) on the
date specified by written consent or agreement of the holders of at
least 66 2/3% of the then outstanding shares of Series A Preferred
Stock (a “Qualified IPO”). If such closing occurs prior
to November 8, 2019, the Conversion Price per share shall be
(i) $5.68 per share from November 8, 2016 to
November 7, 2017; (ii) $6.19 per share from
November 8, 2017 to November 7, 2018; and
(iii) $6.71 per share from November 8, 2018 to
November 7, 2019.
Redemption by Novume
At any time from and after November 8, 2019, we may, upon
thirty (30) days’ notice, redeem all or any portion of
the then outstanding shares of Series A Preferred Stock for cash at
a redemption price per share equal to the sum of (i) the
corresponding redemption price below (the “Base Redemption
Price”) plus (ii) the amount of any accrued but unpaid
dividends on such shares being redeemed, if any, whether or not
declared, to and including the date immediately prior to such date
of redemption. The Base Redemption Price shall be (a)(i) $7.22,
from November 8, 2019 to November 7, 2020 or
(ii) $7.74, from and after November 8, 2020.
Redemption by Holder
At any time after November 8, 2021, each holder of the Series A
Preferred Stock will have the right to require us to redeem all,
but not less than all, of such holder’s Series A Preferred
Stock for a redemption price of $7.74 per
share plus the
amount of any accrued but unpaid dividends thereof, if any, whether
or not declared, to and including the date immediately prior to
such date of redemption.
Liquidation Rights
In the event of a “Liquidation Event” (as defined
below), the holders of Series A Preferred Stock are entitled to be
paid out of our assets available for distribution to stockholders
an amount equal to $5.16 per share plus the
amount of any accrued but unpaid dividends thereof, if any, whether
or not declared, to and including such date of liquidation.
“Liquidation Event” means a liquidation, dissolution or
winding up of Novume in a single transaction or series of
transactions. The sale, conveyance, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all of our property and assets shall not be deemed a
Liquidation Event, nor shall the merger, consolidation or any other
business combination transaction of with any other corporation or
person or the merger, consolidation or any other business
combination transaction with any other corporation or person be
deemed to be a Liquidation Event.
Series B Cumulative Convertible Preferred Stock of
Novume
The following is a summary of certain material terms and provisions
of the Series B Preferred Stock. The following summary is subject
to, and qualified in its entirety by, the Certificate of
Designations of Series B Cumulative Convertible Preferred Stock
(the “Novume Series B Preferred Stock Certificate of
Designations”). You should review a copy of our Series B
Preferred Stock Certificate of Designations for a complete
description of the terms and conditions applicable to the Series B
Preferred Stock. As of April 24, 2018, there were 240,861 shares of
Series B Preferred Stock outstanding which are convertible into
481,722 shares of common stock.
Voting Rights
The holders of Series B Preferred Stock shall not have any voting
rights except as expressly set forth below or as otherwise from
time to time required by law.
6
So long as any shares of Series B Preferred Stock are outstanding,
in addition to any other vote or consent of stockholders required
by law or by our Certificate of Incorporation, the vote or consent
of the holders of a majority of the outstanding shares of Series B
Preferred Stock at the time outstanding and entitled to vote
thereon shall be necessary for effecting or validating, either
directly or indirectly by amendment, merger, consolidation or
otherwise:
●
any
amendment, alteration or repeal to our Charter or Bylaws which have
an adverse effect on the rights, preferences, privileges or voting
powers of the Series B Preferred Stock;
●
at
any time until November 8, 2018, (a) any declaration or
payment of cash dividends on any of our common stock or other stock
that is specifically designated as junior to the Series B Preferred
Stock; (b) any purchase, redemption or other acquisition for
consideration of any of our common stock or other junior stock,
whether directly or indirectly; or (c) if and only if we are
delinquent in the payment of dividends on Series B Preferred Stock,
any declaration or payment of cash dividends or purchase,
redemption or other acquisition for consideration of any class of
securities hereafter authorized that is specifically designated as
ranking pari passu with the Series B Preferred Stock, whether
directly or indirectly; provided, further, however, that the
consent of the holders of the Series B Preferred Stock shall not be
required in connection with any repurchase of any junior stock held
by any employee or consultant of the Company (x) upon any
termination of such employee’s or consultant’s
employment or consultancy pursuant to any agreement providing for
such repurchase or (y) otherwise permitted pursuant to an
agreement between the Company and an employee or consultant
thereof; or
●
any
consummation of a binding share exchange or reclassification
involving the Series B Preferred Stock, or of a merger or
consolidation of the Company with another corporation or other
entity, unless in each case (x) the shares of Series B
Preferred Stock remain outstanding or, in the case of any such
merger or consolidation with respect to which we are not the
surviving or resulting entity, are converted into or exchanged for
preference securities of the surviving or resulting entity or its
ultimate parent, in each case, that is an entity organized and
existing under the laws of the United States of America, any state
thereof or the District of Columbia and (y) such shares of
Series B Preferred Stock remaining outstanding or such preference
securities, as the case may be, have such rights, preferences,
privileges and voting powers, and limitations and restrictions
thereof, taken as a whole, as are not less favorable to the holders
thereof than the rights, preferences, privileges and voting powers,
and limitations and restrictions thereof, of the Series B Preferred
Stock immediately prior to such consummation, taken as a whole;
provided, further, that no vote by the holders of Series B
Preferred Stock under the foregoing shall be required to the extent
a plan of merger, binding share exchange or similar event otherwise
provides that the holders of Series B Preferred Stock would receive
an amount of cash in such merger, share exchange or similar event
equal to the liquidation preference as of the consummation of such
merger, share exchange or similar event.
Dividends
Dividends shall be paid in arrears at a rate of four and four
hundred eighty-four thousandths percent (4.484%) on the Liquidation
Preference as defined in the Series B Preferred Stock Certificate
of Designations or $0.448 per share.
Conversion Rights
At any time, each holder of the Series B Preferred Stock will have
the right to convert each share of Series B Preferred Stock into
such number of fully paid and nonassessable shares of our common
stock as is determined by dividing (i) the sum of
(x) $10.00 (the “Series B Original Issue Price”
(as adjusted pursuant hereto for stock splits, stock dividends,
reclassifications and the like)) plus (y) the
amount of any accrued but unpaid dividends on such shares being
converted, if any, whether or not declared, to and including the
date immediately prior to such date of conversion, by
(ii) $5.00 applicable to such share of Series B Preferred
Stock, in effect on the date the certificate is surrendered for
conversion. The number of shares of common stock into which each
share is convertible, after taking into account any such
adjustments, is hereinafter referred to as the “Conversion
Ratio.”
7
The Series B Preferred Stock will automatically be converted at the
then effective Conversion Ratio on the last day of any period
of thirty (30) consecutive trading days, in which, during a period
of twenty (20) trading days (whether consecutive or not), the
volume weighted average of the daily Current Market Price per share
of common stock equals or exceeds $7.50 (after taking into account
any adjustments as set forth in the Novume Series B Preferred
Stock Certificate of Designations.)
Liquidation Rights.
In the event of a “Liquidation Event” (as defined
below), the holders of Series B Preferred Stock are entitled to be
paid out of our assets available for distribution to stockholders
an amount equal to $10 per share plus the
amount of any accrued but unpaid dividends thereof, if any, whether
or not declared, to and including such date of liquidation.
“Liquidation Event” means a liquidation, dissolution or
winding up of Novume in a single transaction or series of
transactions. The sale, conveyance, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property and assets of Novume shall not be
deemed a Liquidation Event, nor shall the merger, consolidation or
any other business combination transaction of Novume into or with
any other corporation or person or the merger, consolidation or any
other business combination transaction with any other corporation
or person be deemed to be a Liquidation Event.
Warrants
As of
April 24, 2018, we have outstanding warrants to purchase an
aggregate of 820,586 shares of our common stock. As of April 24,
2018, we also have outstanding Unit Warrants to purchase an
aggregate of 243,655 shares of our common stock.
Piggyback Registration Rights
The holders of an aggregate of 375,000 shares of our common stock,
including 481,722 shares of common stock issuable upon conversion
of our Series B Preferred Stock, or their permitted transferees,
will be entitled to rights with respect to the registration of
these shares under the Securities Act. These shares are referred to
as registrable securities. These rights are provided under the
terms of our Registration Rights Agreement between the Company and
the holders identified on Schedule I thereto dated as of October 1,
2017, as amended, or RRA, between us and the holders of these
registrable securities, providing piggyback registration rights.
All fees, costs, and expenses incurred in connection with the
registration of registrable securities, including reasonable fees
and disbursements of one counsel to the selling stockholders will
be borne by the Company. If we register any of our
securities for public sale, each holder of registrable securities
has a right to request the inclusion of any then-outstanding
registrable securities held by them on our registration statement.
However, this right does not apply to a registration relating
solely to employee benefit plans, a corporate reorganization or
stock issuable upon conversion of debt securities. If the
underwriters of any underwritten offering determine in good faith
that marketing factors require a limitation on the number of
shares, the number of shares to be registered will be apportioned,
first, to the company for its own account and, second, pro rata
among these holders, based on the number of registrable securities
held by each holder. The RRA was entered into in connection with
that certain Agreement and Plan of Merger as of the Agreement Date
by and among the Company, Global Technical Services, Inc., a
Delaware corporation and wholly owned subsidiary of the Company,
Global Contract Professionals, Inc., a Delaware corporation and
wholly owned subsidiary of the Company, Global Technical Services,
Inc., a Texas corporation, and Global Contract Professionals, Inc.,
a Texas corporation. The registration rights terminate
on the third anniversary of the RRA.
8
In connection with that certain Promissory Note issued by the
Company and its wholly owned subsidiary, Brekford Traffic Safety,
Inc. on April 3, 2018, the Company granted registration rights to
the investor with respect to Thirty-Five (35,000) Thousand shares
of common stock of the Company (the "Lender’s Shares"). The
Company agreed to include the Lender’s Shares on the next
registration statement filed by the Company with the Securities and
Exchange Commission. In the event the Company fails to include the
Lender’s Shares on its next selling stockholder registration
statement, the Company is obligated to issue an additional 15,000
shares of common stock to the Lender.
Anti-Takeover Provisions
The provisions of Delaware law, our Amended and Restated
Certificate of Incorporation, and our Amended and Restated Bylaws,
could have the effect of delaying, deferring, or discouraging
another person from acquiring control of our company. These
provisions, which are summarized below, may have the effect of
discouraging takeover bids. They are also designed, in part, to
encourage persons seeking to acquire control of us to negotiate
first with our board of directors. We believe that the benefits of
increased protection of our potential ability to negotiate with an
unfriendly or unsolicited acquirer outweigh the disadvantages of
discouraging a proposal to acquire us because negotiation of these
proposals could result in an improvement of their
terms.
Delaware Law
We are subject to the provisions of Section 203 of the
Delaware General Corporation Law, or DGCL, regulating corporate
takeovers. In general, DGCL Section 203 prohibits a publicly
held Delaware corporation from engaging in a business combination
with an interested stockholder for a period of three years
following the date on which the person became an interested
stockholder unless:
●
prior to the date of the transaction, the Board of
Directors of the corporation approved either the business
combination or the transaction that
resulted in the stockholder becoming an interested
stockholder;
●
the interested stockholder owned at least 85% of
the voting stock of the corporation outstanding at the time
the transaction commenced, excluding
for purposes of determining the voting stock outstanding, but not
the outstanding voting stock owned by the interested stockholder,
(1) shares owned by persons who are directors and also
officers and (2) shares owned by employee stock plans in which
employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
●
at or subsequent to the date of the transaction,
the business combination is approved by the board of
directors of the corporation and
authorized at an annual or special meeting of stockholders, and not
by written consent, by the affirmative vote of at least 66.67% of
the outstanding voting stock that is not owned by the interested
stockholder.
Generally, a business combination includes a merger, asset or stock
sale, or other transaction or series of transactions together
resulting in a financial benefit to the interested stockholder. An
interested stockholder is a person who, together with affiliates
and associates, owns or, within three years prior to the
determination of interested stockholder status, did own 15% or more
of a corporation’s outstanding voting stock. We expect the
existence of this provision to have an anti-takeover effect with
respect to transactions our board of directors does not approve in
advance. We also anticipate that DGCL Section 203 may also
discourage attempts that might result in a premium over the market
price for the shares of common stock held by
stockholders.
9
Anti-Takeover Effects of Provisions of Amended and Restated
Certificate of Incorporation and Amended and Restated
Bylaws
Certain anti-takeover provisions have been incorporated into our
Amended and Restated Certificate of Incorporation and Bylaws,
including:
●
the
vote of 66 2/3 of the voting power of the corporation entitled to
vote at an election of directors is required for the removal of a
member of our Board;
●
the
vote of 66 2/3 of the voting power of the corporation entitled to
vote at an election of directors is required before any of our
Bylaws may, at any annual meeting or at any special meeting called
for that purpose, be altered, amended, rescinded or repealed;
and
●
the
request of one or more stockholders holding shares in the aggregate
entitled to cast not less than 35% of the vote at a meeting is
required to call a stockholder meeting.
Listing of Common Shares
Our common stock is listed on the Nasdaq Capital Market under the
symbol “NVMM.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Issuer
Direct Corporation. The transfer agent’s address is 500
Perimeter Park Drive, Suite D, Morrisville, NC 27560 and its
telephone number is (919) 481-4000.
DESCRIPTION OF WARRANTS
We may
issue warrants for the purchase of preferred stock or common stock.
Warrants may be issued independently or together with any preferred
stock or common stock, and may be attached to or separate from any
offered securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between a warrant
agent specified in the agreement and us. The warrant agent will act
solely as our agent in connection with the warrants of that series
and will not assume any obligation or relationship of agency or
trust for or with any holders or beneficial owners of warrants.
This summary of some provisions of the securities warrants is not
complete. You should refer to the securities warrant agreement,
including the forms of securities warrant certificate representing
the securities warrants, relating to the specific securities
warrants being offered for the complete terms of the securities
warrant agreement and the securities warrants. The securities
warrant agreement, together with the terms of the securities
warrant certificate and securities warrants, will be filed with the
Securities and Exchange Commission in connection with the offering
of the specific warrants.
The
applicable prospectus supplement will describe the following terms,
where applicable, of the warrants in respect of which this
prospectus is being delivered:
●
the title of the
warrants;
●
the aggregate
number of the warrants;
●
the price or prices
at which the warrants will be issued;
●
the designation,
amount and terms of the offered securities purchasable upon
exercise of the warrants;
●
if applicable, the
date on and after which the warrants and the offered securities
purchasable upon exercise of the warrants will be separately
transferable;
10
●
the terms of the
securities purchasable upon exercise of such warrants and the
procedures and conditions relating to the exercise of such
warrants;
●
any provisions for
adjustment of the number or amount of securities receivable upon
exercise of the warrants or the exercise price of the
warrants;
●
the price or prices
at which and currency or currencies in which the offered securities
purchasable upon exercise of the warrants may be
purchased;
●
the date on which
the right to exercise the warrants shall commence and the date on
which the right shall expire;
●
the minimum or
maximum amount of the warrants that may be exercised at any one
time;
●
information with
respect to book-entry procedures, if any;
●
if appropriate, a
discussion of Federal income tax consequences; and
●
any other material
terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the warrants.
Warrants
for the purchase of common stock or preferred stock will be offered
and exercisable for U.S. dollars only. Warrants will be issued in
registered form only.
Upon
receipt of payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant
agent or any other office indicated in the applicable prospectus
supplement, we will, as soon as practicable, forward the purchased
securities. If less than all of the warrants represented by the
warrant certificate are exercised, a new warrant certificate will
be issued for the remaining warrants.
Prior
to the exercise of any securities warrants to purchase preferred
stock or common stock, holders of the warrants will not have any of
the rights of holders of the common stock or preferred stock
purchasable upon exercise, including in the case of securities
warrants for the purchase of common stock or preferred stock, the
right to vote or to receive any payments of dividends on the
preferred stock or common stock purchasable upon
exercise.
DESCRIPTION OF UNITS
As
specified in the applicable prospectus supplement, we may issue
units consisting of shares of common stock, shares of preferred
stock or warrants or any combination of such
securities.
The
applicable prospectus supplement will specify the following terms
of any units in respect of which this prospectus is being
delivered:
●
the terms of the
units and of any of the common stock, preferred stock and warrants
comprising the units, including
whether and under what circumstances the securities comprising the
units may be traded separately;
●
a description of the terms of any unit
agreement governing the units; and
●
a description of the provisions for the
payment, settlement, transfer or exchange of the
units.
11
PLAN OF DISTRIBUTION
We may
sell the securities offered through this prospectus (i) to or
through underwriters or dealers, (ii) directly to purchasers,
including our affiliates, (iii) through agents, or (iv) through a
combination of any these methods. The securities may be distributed
at a fixed price or prices, which may be changed, market prices
prevailing at the time of sale, prices related to the prevailing
market prices, or negotiated prices. The prospectus supplement will
include the following information:
●
the terms of the
offering;
●
the names of any
underwriters or agents;
●
the name or names
of any managing underwriter or underwriters;
●
the purchase price
of the securities;
●
any over-allotment
options under which underwriters may purchase additional securities
from us;
●
the net proceeds
from the sale of the securities
●
any delayed
delivery arrangements
●
any underwriting
discounts, commissions and other items constituting
underwriters’ compensation;
●
any initial public
offering price;
●
any discounts or
concessions allowed or reallowed or paid to dealers;
●
any commissions
paid to agents; and
●
any securities
exchange or market on which the securities may be
listed.
Sale Through Underwriters or Dealers
Only
underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If
underwriters are used in the sale, the underwriters will acquire
the securities for their own account, including through
underwriting, purchase, security lending or repurchase agreements
with us. The underwriters may resell the securities from time to
time in one or more transactions, including negotiated
transactions. Underwriters may sell the securities in order to
facilitate transactions in any of our other securities (described
in this prospectus or otherwise), including other public or private
transactions and short sales. Underwriters may offer securities to
the public either through underwriting syndicates represented by
one or more managing underwriters or directly by one or more firms
acting as underwriters. Unless otherwise indicated in the
prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and
the underwriters will be obligated to purchase all the offered
securities if they purchase any of them. The underwriters may
change from time to time any initial public offering price and any
discounts or concessions allowed or reallowed or paid to
dealers.
If
dealers are used in the sale of securities offered through this
prospectus, we will sell the securities to them as principals. They
may then resell those securities to the public at varying prices
determined by the dealers at the time of resale. The prospectus
supplement will include the names of the dealers and the terms of
the transaction.
12
Direct Sales and Sales Through Agents
We may
sell the securities offered through this prospectus directly. In
this case, no underwriters or agents would be involved. Such
securities may also be sold through agents designated from time to
time. The prospectus supplement will name any agent involved in the
offer or sale of the offered securities and will describe any
commissions payable to the agent. Unless otherwise indicated in the
prospectus supplement, any agent will agree to use its reasonable
best efforts to solicit purchases for the period of its
appointment.
We may
sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of those securities. The
terms of any such sales will be described in the prospectus
supplement.
Delayed Delivery Contracts
If the
prospectus supplement indicates, we may authorize agents,
underwriters or dealers to solicit offers from certain types of
institutions to purchase securities at the public offering price
under delayed delivery contracts. These contracts would provide for
payment and delivery on a specified date in the future. The
contracts would be subject only to those conditions described in
the prospectus supplement. The applicable prospectus supplement
will describe the commission payable for solicitation of those
contracts.
Continuous Offering Program
Without
limiting the generality of the foregoing, we may enter into a
continuous offering program equity distribution agreement with a
broker-dealer, under which we may offer and sell shares of our
common stock from time to time through a broker-dealer as our sales
agent. If we enter into such a program, sales of the shares of
common stock, if any, will be made by means of ordinary
brokers’ transactions on the NASDAQ Capital Market at market
prices, block transactions and such other transactions as agreed
upon by us and the broker-dealer. Under the terms of such a
program, we also may sell shares of common stock to the
broker-dealer, as principal for its own account at a price agreed
upon at the time of sale. If we sell shares of common stock to such
broker-dealer as principal, we will enter into a separate terms
agreement with such broker-dealer, and we will describe this
agreement in a separate prospectus supplement or pricing
supplement.
Market Making, Stabilization and Other Transactions
Unless
the applicable prospectus supplement states otherwise, other than
our common stock all securities we offer under this prospectus will
be a new issue and will have no established trading market. We may
elect to list offered securities on an exchange or in the
over-the-counter market. Any underwriters that we use in the sale
of offered securities may make a market in such securities, but may
discontinue such market making at any time without notice.
Therefore, we cannot assure you that the securities will have a
liquid trading market.
Any
underwriter may also engage in stabilizing transactions, syndicate
covering transactions and penalty bids in accordance with Rule 104
under the Securities Exchange Act. Stabilizing transactions involve
bids to purchase the underlying security in the open market for the
purpose of pegging, fixing or maintaining the price of the
securities. Syndicate covering transactions involve purchases of
the securities in the open market after the distribution has been
completed in order to cover syndicate short positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a
syndicate member when the securities originally sold by the
syndicate member are purchased in a syndicate covering transaction
to cover syndicate short positions. Stabilizing transactions,
syndicate covering transactions and penalty bids may cause the
price of the securities to be higher than it would be in the
absence of the transactions. The underwriters may, if they commence
these transactions, discontinue them at any time.
13
General Information
Agents,
underwriters, and dealers may be entitled, under agreements entered
into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act. Our agents,
underwriters, and dealers, or their affiliates, may be customers
of, engage in transactions with or perform services for us, in the
ordinary course of business.
LEGAL MATTERS
The
validity of the issuance of the securities offered by this
prospectus will be passed upon for us by Sichenzia Ross Ference
Kesner LLP, New York, New York.
EXPERTS
The consolidated balance sheets of Novume Solutions, Inc. and its
subsidiaries as of December 31, 2017 and 2016, and the related
consolidated statements of operations, stockholders’ equity,
and cash flows for the years then ended, appearing in the Company's
Annual Report on Form 10-K for the year ended December 31, 2017,
have been audited by BD
& Company, Inc., independent registered
public accounting firm, as stated in their report thereon and
incorporated by reference herein.
WHERE YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and special reports, along with other information
with the SEC. Our SEC filings are available to the public over the
Internet at the SEC’s website at http://www.sec.gov. You may
also read and copy any document we file at the SEC’s Public
Reference Room at 100 F Street, NE, Washington, D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the
Public Reference Room.
This
prospectus is part of a registration statement on Form S-3 that we
filed with the SEC to register the securities offered hereby under
the Securities Act of 1933, as amended. This prospectus does not
contain all of the information included in the registration
statement, including certain exhibits and schedules. You may obtain
the registration statement and exhibits to the registration
statement from the SEC at the address listed above or from the
SEC’s internet site.
You may
also read and copy any document we file with the SEC at its public
reference facilities at 100 F Street, N.E., Room 1580, Washington,
D.C. 20549. You may also obtain copies of these documents at
prescribed rates by writing to the Public Reference Section of the
SEC at 100 F Street, N.E., Washington, D.C. 20549. Please call the
SEC at 1-800-SEC-0330 for further information on the operation of
the public reference facilities. You may also request a copy of
these filings, at no cost, by writing or telephoning us at: 14420
Albemarle Point Place, Suite 200, Chantilly, VA 20151 or (703)
953-3838.
14
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This
prospectus is part of a registration statement filed with the SEC.
The SEC allows us to “incorporate by reference” into
this prospectus the information that we file with them, 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, and information that we
file later with the SEC will automatically update and supersede
this information. The following documents are incorporated by
reference and made a part of this prospectus:
●
our Annual Report
on Form 10-K for the fiscal year ended December 31, 2017, filed
with the SEC on April 12, 2018;
●
our Current Reports
on Form 8-K filed with the SEC on January 25, 2018, February 23,
2018, March 2, 2018, March 13, 2018 and April 9, 2018, including
our amended current reports on Form 8-K/A filed on January 25,
2018;
●
the description of
our common stock contained in our Registration Statement on Form
8-A filed with the SEC on January 8, 2018 (File No. 001-38338),
including any amendment or report filed for the purpose of updating
such description; and
●
all reports and
other documents subsequently filed by us pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this prospectus and prior to the termination of this
offering.
Notwithstanding
the foregoing, information furnished under Items 2.02 and 7.01 of
any Current Report on Form 8-K, including the related exhibits, is
not incorporated by reference in this prospectus.
Any
statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference into
this prospectus will be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement
contained in this prospectus modifies or supersedes the statement.
Any statement so modified or superseded will not be deemed, except
as so modified or superseded, to constitute a part of this
prospectus.
We will
furnish without charge to you, on written or oral request, a copy
of the Annual Report incorporated by reference, including exhibits
to the document. You should direct any requests for documents to
Novume Solutions, Inc., 14420 Albemarle Point Place, Suite 200,
Chantilly, VA 20151.
15
$100,000,000
Common Stock
Preferred Stock
Warrants
Units
Prospectus
,
2018
16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The
following table sets forth the costs and expenses payable by the
Registrant in connection with this offering, other than
underwriting commissions and discounts, all of which are estimated
except for the SEC registration fee.
|
Item
|
Amount
|
|
SEC
registration fee
|
$12,450
|
|
Printing
and engraving expenses
|
2,000
|
|
Legal
fees and expenses
|
30,000
|
|
Accounting
fees and expenses
|
10,000
|
|
Transfer
agent and registrar’s fees and expenses
|
5,000
|
|
Miscellaneous
expenses
|
1,550
|
|
Total
|
$106,000
|
Item 15. Indemnification of Directors and Officers.
We are
incorporated under the laws of the State of Delaware. Section 145
of the Delaware General Corporation Law provides that a Delaware
corporation may indemnify any persons who are, or are threatened to
be made, parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an
officer, director, employee or agent of such corporation, or is or
was serving at the request of such person as an officer, director,
employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to
the corporation’s best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
that his conduct was illegal. A Delaware corporation may indemnify
any persons who are, or are threatened to be made, a party to any
threatened, pending or completed action or suit by or in the right
of the corporation by reason of the fact that such person was a
director, officer, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director,
officer, employee or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit provided such
person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporation’s best
interests except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is
successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the
expenses which such officer or director has actually and reasonably
incurred. Our Certificate of Incorporation and Bylaws provide for
the indemnification of our directors and officers to the fullest
extent permitted under the Delaware General Corporation
Law.
Section
102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its Certificate of Incorporation that a
director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duties as a director, except for liability for
any:
●
transaction from
which the director derives an improper personal
benefit;
●
act or omission not
in good faith or that involves intentional misconduct or a knowing
violation of law;
●
unlawful payment of
dividends or redemption of shares; or
●
breach of a
director’s duty of loyalty to the corporation or its
stockholders.
17
Our
Certificate of Incorporation includes such a provision. Expenses
incurred by any officer or director in defending any such action,
suit or proceeding in advance of its final disposition shall be
paid by us upon delivery to us of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that such director or officer is not
entitled to be indemnified by us.
As
permitted by the Delaware General Corporation Law, we have entered
into indemnity agreements with each of our directors and executive
officers. These agreements, among other things, require us to
indemnify each director and officer to the fullest extent permitted
by law and advance expenses to each indemnitee in connection with
any proceeding in which indemnification is available.
We have
an insurance policy covering our officers and directors with
respect to certain liabilities, including liabilities arising under
the Securities Act of 1933, as amended, or the Securities Act, or
otherwise.
Item 16. Exhibits.
|
Exhibit
No.
|
Description
|
|
1.1
|
Form of
Underwriting Agreement*
|
|
2.1
|
|
|
2.2
|
|
|
3.1
|
|
|
3.2
|
|
|
3.3
|
|
|
3.4
|
|
|
3.5
|
|
|
3.6
|
|
|
4.1
|
Form of Certificate
of Designation*
|
|
4.2
|
Form of Preferred
Stock Certificate*
|
|
4.3
|
Form of
Warrant*
|
|
4.4
|
Form of Warrant
Certificate*
|
|
4.5
|
Form of Stock
Purchase Agreement*
|
|
4.6
|
Form of Unit
Agreement*
|
|
5.1
|
Opinion of
Sichenzia Ross Ference Kesner LLP**
|
|
23.1
|
Consent of
BD & Company, Inc.**
|
|
23.2
|
Consent of
Sichenzia Ross Ference Kesner LLP (included in Exhibit
5.1)**
|
|
24.1
|
Power of attorney
(included on the signature page of this Registration
Statement)
|
* To be
filed by amendment or by a Current Report on Form 8-K and
incorporated by reference herein.
**
Filed herewith.
18
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;
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement.
(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, Paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section do not apply if the registration
statement is on Form S-3 or Form F-3 and 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 that are incorporated by reference
in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date; or (5) That, for the purpose of
determining liability of the registrant under the Securities Act of
1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to
this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(b) The
registrant hereby undertakes that for purposes of determining any
liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual
report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
19
(c)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such
issue.
(d) The
registrant hereby undertakes that:
(1) 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.
(2) 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.
20
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 fling 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 Chantilly,
State of Virginia, on April 24, 2018.
|
|
NOVUME SOLUTIONS, INC.
|
|
|
|
|
|
By:
/s/ Robert A.
Berman
|
|
|
Robert
A. Berman
|
|
|
Chief
Executive Officer, (Principal Executive Officer)
|
Each
person whose signature appears below constitutes and appoints
Robert A. Berman as his true and lawful attorney in fact and agent,
with full powers of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any
or all amendments (including post effective amendments) to the
Registration Statement, and to sign any registration statement for
the same offering covered by this Registration Statement that is to
be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and all post effective
amendments thereto, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, each acting alone, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent 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 held on the dates indicated.
|
Signature
|
Title
|
Date
|
|
|
|
|
|
/s/ Robert A.
Berman
Robert
A. Berman
|
Chief Executive
Officer (Principal Executive Officer) and Director
|
April 24,
2018
|
|
|
|
|
|
/s/ Riaz
Latifullah
Riaz
Latifullah
|
EVP, Corporate
Development (Principal Financial and Accounting
Officer)
|
April 24, 2018
|
|
|
|
|
|
/s/ James K.
McCarthy
James
K. McCarthy
|
Chairman of the
Board and Director
|
April 24, 2018
|
|
|
|
|
|
/s/ Richard Nathan
Dr. Richard
Nathan
|
Director
|
April 24, 2018
|
|
|
|
|
|
/s/ Glenn Goord
Glenn
Goord
|
Director
|
April 24, 2018
|
|
|
|
|
|
/s/ Paul de Bary
Paul
de Bary
|
Director
|
April 24, 2018
|
|
|
|
|
|
/s/ Christine J.
Harada
Christine
J. Harada
|
Director
|
April 24, 2018
|
|
/s/ Marta Tienda
Marta
Tienda
|
Director
|
April 24, 2018
|
21
