As
filed with the Securities and Exchange Commission on October 9, 2014
Registration
No. 333-198802
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
AMENDMENT
NO. 3
TO
FORM
S-1
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
GLOBAL
DIGITAL SOLUTIONS, INC.
(Exact
name of registrant as specified in its charter)
New
Jersey |
|
2844 |
|
22-3392051 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Primary
Standard Industrial
Classification
Code Number) |
|
(I.R.S.
Employer
Identification
Number) |
777
South Flagler Drive, Suite 800 West Tower
West
Palm Beach, Florida 33401
Telephone:
(561) 515-6163
(Address,
including zip code, and telephone number,
including area code, of registrant’s principal executive offices) |
|
David
A. Loppert
Chief
Financial Officer
777
South Flagler Drive, Suite 800 West Tower
West
Palm Beach, Florida 33401
Telephone:
(561) 515-6163
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service) |
Copies
to:
Owen
Naccarato
Naccarato
& Associates
1100
Quail Street, Suite 100
Newport
Beach, CA 92660
Office:
949-851-9261
Fax:
949-851-9262
Approximate
date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration
statement.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act of 1933 registration statement number of the earlier effective registration
statement for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate
by a 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):
|
Large
Accelerated Filer ☐ |
|
Accelerated
Filer ☐ |
|
Non-Accelerated
Filer ☐ (Do not check if a smaller reporting company) |
|
Smaller
Reporting Company ☒ |
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.
EXPLANATORY
NOTE
This
Amendment No. 3 to Form S-1 Registration Statement (Registration No. 333-198802) of Global Digital Solutions, Inc. is being filed
solely to provide a revised legal opinion exhibit to the Registration Statement. Accordingly, Part I, the form of prospectus,
has been omitted from this filing.
PART
II - INFORMATION NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuances and Distribution.
The
following table sets forth the costs and expenses payable by us in connection with the issuance and distribution of the securities
being registered. None of the following expenses are payable by the selling stockholders. All of the amounts shown are estimates,
except for the SEC registration fee.
SEC registration fee | |
$ | 661.15 | |
Legal fees and expenses | |
$ | 10,000.00 | |
Accounting fees and expenses | |
$ | 10,000.00 | |
Miscellaneous | |
$ | 500.00 | |
TOTAL | |
$ | 21,161.15 | |
Item
14. Indemnification of Directors and Officers.
The
New Jersey Business Corporation Act (“BCA”) provides us with the power to indemnify any of our directors and officers.
The director or officer must have conducted himself/herself in good faith and reasonably believe that his/her conduct was in,
or not opposed to, our best interests. In a criminal action, the director, officer, employee or agent must not have had reasonable
cause to believe his/her conduct was unlawful.
Under
the BCA, advances for expenses may be made by agreement if the director or officer affirms in writing that he/she believes he/she
has met the standards and will personally repay the expenses if it is determined such officer or director did not meet the standards.
Our
Bylaws include an indemnification provision under which we have the power to indemnify our directors, officers, former directors
and officers, or any person who serves or served at our request for our benefit as a director or officer of another corporation
or our representative in a partnership, joint venture, trust, or other enterprise (including heirs and personal representatives)
against all expenses, liability, and loss actually and reasonably incurred, including an amount paid to settle an action or satisfy
a judgment to which the director or officer is made a party.
We
also have director and officer indemnification agreements with each of our executive officers and directors that provide, among
other things, for the indemnification to the fullest extent permitted or required by New Jersey law, provided that such indemnitee
shall not be entitled to indemnification in connection with any “claim” (as such term is defined in the agreement)
initiated by the indemnitee against us or our directors or officers unless we join or consent to the initiation of such claim,
or the purchase and sale of securities by the indemnitee in violation of Section 16(b) of the Exchange Act.
Any
repeal or modification of these provisions approved by our stockholders shall be prospective only, and shall not adversely affect
any limitation on the liability of any of our directors or officers existing as of the time of such repeal or modification.
We
are also permitted to apply for insurance on behalf of any director, officer, employee or other agent for liability arising out
of his actions, whether or not the BCA would permit indemnification.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted for our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item
15. Recent Sales of Unregistered Securities.
Set
forth below are all securities sold by the Company in the past three years that were not registered under the Securities Act.
On
December 7, 2011, we issued 2,975,000 shares of our common stock to Reno Zalunado in consideration for the cancellation of a note
we owed him of $5,950. The shares of common stock were issued to Mr. Zalunado without registration in reliance upon the exemption
provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder.
On
January 1, 2012 we issued 4,289,029 shares of our common stock valued at $0.035 per shares, or $150,116, to acquire 51% of Bronco
Communications LLC. The securities issued to Bronco were not registered under the Securities Act, or the securities laws of any
state, and were offered and sold in reliance on the exemption from registration afforded by Section 4(2) of the Securities Act
of 1933, as amended, as a transaction by the Company not involving any public offering, and Rule 506 promulgated thereunder.
On
March 28, 2012, we issued 3,300,000 shares of our common stock to Reno Zalunado in consideration for the cancellation of a note
we owed him of $6,600. The shares of common stock were issued to Mr. Zalunado without registration in reliance upon the exemption
provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder.
Between
May 18, 2012 and May 21, 2012, we accepted subscriptions for a total of 500,000 shares of our common stock in a private placement
from Eli Aramouni (250,000) and E. Eldridge Floyd (250,000). We received gross proceeds of $50,000. The private placement was
made solely to “accredited investors,” as that term is defined in Regulation D under the Securities Act. The securities
sold in the private placement were not registered under the Securities Act, or the securities laws of any state, and were offered
and sold in reliance on the exemption from registration afforded by Section 4(2) of the Securities Act of 1933, as amended, as
a transaction by the Company not involving any public offering, and Rule 506 promulgated thereunder.
On
May 30, 2012, we issued 250,000 shares of our common stock to K. Brett Thackston, a consultant, for services rendered valued at
$15,000. The shares of common stock were issued to the consultant without registration in reliance upon the exemption provided
by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder.
On
May 30, 2012, we issued 6,043,801 shares of our common stock to Three Rivers Investments, LLC, a lender, in full satisfaction
of a note payable of $314,278. The shares of common stock were issued to the lender without registration in reliance upon the
exemption provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any
public offering, and Rule 506 promulgated thereunder.
On
September 12, 2012, we issued an aggregate of 2,202,900 shares of our common stock to six lenders in full satisfaction of notes
payable totaling $1,101,450. The shares of common stock were issued to the lenders without registration in reliance upon the exemption
provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder.
On
October 1, 2012, we accepted subscriptions for a total of 416,667 shares of our common stock in a private placement from Franklin
L. Johnson Trustee, Franklin Johnson Revocable Trust. We received gross proceeds of $25,000. The private placement was made solely
to “accredited investors,” as that term is defined in Regulation D under the Securities Act. The securities sold in
the private placement were not registered under the Securities Act, or the securities laws of any state, and were offered and
sold in reliance on the exemption from registration afforded by Section 4(2) of the Securities Act of 1933, as amended, as a transaction
by the Company not involving any public offering, and Rule 506 promulgated thereunder.
On
October 15, 2012, we issued 750,000 shares of our common stock to two consultants, Insight Capital Consultants (500,000) and K.
Brett Thackston (250,000), for services rendered valued at $38,000. The shares of common stock were issued to the consultants
without registration in reliance upon the exemption provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction
by the Company not involving any public offering, and Rule 506 promulgated thereunder.
On
October 15, 2012, we accepted subscriptions for a total of 750,000 shares of our common stock in a private placement from E. Eldridge
Floyd (250,000) and Constantino Galaxides (500,000). We received gross proceeds of $75,000. The private placement was made solely
to “accredited investors,” as that term is defined in Regulation D under the Securities Act. The securities sold in
the private placement were not registered under the Securities Act, or the securities laws of any state, and were offered and
sold in reliance on the exemption from registration afforded by Section 4(2) of the Securities Act of 1933, as amended, as a transaction
by the Company not involving any public offering, and Rule 506 promulgated thereunder.
On
December 31, 2012, we issued 100,000 shares of our common stock to William Forkner and 50,000 shares of our common stock to Seth
Long for rent valued at $13,500. The shares of common stock were issued without registration in reliance upon the exemption provided
by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder.
On
December 31, 2012, we issued 500,000 shares of our common stock to Constantino Galaxides upon the conversion of 1,000 shares of
our preferred stock. The shares of common stock were issued to the stockholder without registration in reliance upon the exemption
provided by Section 3(a)(9) of the Securities Act of 1933, as amended, for securities exchanged by the Company and existing security
holders where no commission or other remuneration is paid or given directly or indirectly by the Company for soliciting such exchange.
On
December 22, 2012, we issued a warrant to purchase 3,000,000 shares of our common stock at an exercise price of $0.15 per share
to Gabriel De Los Reyes in connection with a loan we received from him. In May 2013, we amended the warrant’s exercise price
to $0.10. As additional consideration for the loan, our Chairman,
Richard J. Sullivan, assigned to the lender 3 million shares of our common stock that he owned. The
warrant was issued without registration in reliance upon the exemption provided by Section 4(2) of the Securities Act of
1933, as amended, as a transaction by the Company not involving any public offering, and Rule 506 promulgated thereunder. On December
18, 2013, Mr. De Los Reyes partially exercised the warrant and we issued 1,250,000 shares in connection with the exercise of this
warrant. We received gross proceeds of $125,000. The securities issued in connection with the exercise of the warrant were not
registered under the Securities Act, or the securities laws of any state, and were offered and sold in reliance on the exemption
from registration afforded by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving
any public offering, and Rule 506 promulgated thereunder. As additional consideration for the loan, our Chairman, Richard J. Sullivan
assigned to the Mr. de Los Reyes 3 million shares of our common stock that he owned.
On
January 1, 2103 we issued 1,000,666 shares of our common stock to six individuals for services and rent valued at $99,700. The
shares of common stock were issued without registration in reliance upon the exemption provided by Section 4(2) of the Securities
Act of 1933, as amended, as a transaction by the Company not involving any public offering, and Rule 506 promulgated thereunder.
On
April 10, 2013, we issued 3,000,000 shares of our common stock to Richard J. Sullivan, our Chairman and CEO, and 5,000,000 shares
of our common stock to David A. Loppert, our CFO, upon the issuance of restricted stock grants that fully vested in January 2014,
in consideration for compensation. The shares were valued at $0.12 per share, the fair market value on the grant date. The shares
of common stock were issued without registration in reliance upon the exemption provided by Section 4(2) of the Securities Act
of 1933, as amended, as a transaction by the Company not involving any public offering, and Rule 506 promulgated thereunder.
On
April 10, 2013, we issued 3,000,000 shares of our common stock to Bay Acquisition Corp., an entity controlled by Richard Sullivan,
our Chairman and CEO, in consideration for collateral the entity pledged to Mr. De Los Reyes for a loan to the Company. The shares
were valued at $360,000. The shares of common stock were issued without registration in reliance upon the exemption provided by
Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering, and
Rule 506 promulgated thereunder.
On
April 10, 2013, we accepted subscriptions for a total of 250,000 shares of our common stock in a private placement from E. Eldridge
Floyd (175,000) and Philip Land (75,000). We received gross proceeds of $25,000. The private placement was made solely to “accredited
investors,” as that term is defined in Regulation D under the Securities Act. The securities sold in the private placement
were not registered under the Securities Act, or the securities laws of any state, and were offered and sold in reliance on the
exemption from registration afforded by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company
not involving any public offering, and Rule 506 promulgated thereunder.
On
April 10, 2013, we issued 500,000 shares of our common stock to K. Brett Thackston, a consultant, for investor relations services
rendered valued at $50,000. The shares of common stock were issued to the consultant without registration in reliance upon the
exemption provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any
public offering, and Rule 506 promulgated thereunder.
In
April, 2013, we agreed to issue 7,500,000 shares of our common stock to Edwin J. Wang, Jennifer S. Carroll and Matthew K. Kelley,
senior advisors to the Company. The shares vest commencing in January 2014. The shares were valued at $0.17 per share, the fair
market value on the grant date. In February 2014, we issued (i) 2,500,000 shares to Cross Pacific Partners, LLC an entity designated
and controlled by Mr. Wang, (ii) 1,250,000 shares to Ms. Carroll and (iii) 1,250,000 shares to Vox Equity Holdings, LLC, and entity
designated by and controlled by Mr. Kelley. The shares of common stock have been and will be issued without registration in reliance
upon the exemption provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving
any public offering, and Rule 506 promulgated thereunder.
On
May 6, 2013, we issued a warrant to purchase 1,000,000 shares of our common stock at an exercise price of $.15 per share to Scott
Weiselberg, a consultant, in connection with a loan modification. The warrant was valued at $300,000. The warrant was issued without
registration in reliance upon the exemption provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction
by the Company not involving any public offering, and Rule 506 promulgated thereunder. The
warrant agreement contained representations from the holder of the warrant to support the Company's reasonable belief that the
holder acquired the warrant for his own account and not with a view to distribution in violation of the Securities Act, and that
the holder is an "accredited investor" as defined in Regulation D.
On
May 21, 2013, we accepted subscriptions for a total of 200,000 shares of our common stock in a private placement from Franklin
Johnson Trustee (100,000) and Artemios Roussos (100,000). We received gross proceeds of $50,000. The private placement was made
solely to “accredited investors,” as that term is defined in Regulation D under the Securities Act. The securities
sold in the private placement were not registered under the Securities Act, or the securities laws of any state, and were offered
and sold in reliance on the exemption from registration afforded by Section 4(2) of the Securities Act of 1933, as amended, as
a transaction by the Company not involving any public offering, and Rule 506 promulgated thereunder.
On
June 1, 2013, we agreed to issue 15,000,000 shares of our common stock to five individuals - 10,000,000 to Richard J. Sullivan
our Chairman and CEO, 3,000,000 to David A. Loppert, our CFO, 1,000,000 to William J. Delgado a Director and our Executive Vice
President, and 1,000,000 to Gary A. Gray, our Vice President in consideration for compensation and fully vest in January 2014.
The shares were valued at $0.26, the fair market value on the grant date. The shares of common stock were issued without registration
in reliance upon the exemption provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company
not involving any public offering, and Rule 506 promulgated thereunder.
Between
May 22, 2013 and June 6, 2013, we accepted subscriptions for a total of 2,150,000 shares of our common stock in a private placement
from 15 investors. We received gross proceeds of $537,500. The private placement was made solely to “accredited investors,”
as that term is defined in Regulation D under the Securities Act. The securities sold in the private placement were not registered
under the Securities Act, or the securities laws of any state, and were offered and sold in reliance on the exemption from registration
afforded by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder.
On
June 25, 2103 we issued 310,000 shares of our common stock to two consultants – K. Brett Thackston (250,000) and Jeff Kelley
(60,000) - for investor relations services valued at $155,000. The shares of common stock were issued without registration in
reliance upon the exemption provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company
not involving any public offering, and Rule 506 promulgated thereunder.
On
June 25, 2013, we issued a warrant to purchase 500,000 shares of our common stock at an
exercise price of $0.50 per share to K. Brett Thackston, a consultant, for investor relations services. The warrant was valued
at $250,000. The warrant was issued without registration in reliance upon the exemption provided by Section 4(2) of the
Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering, and Rule 506 promulgated
thereunder. The warrant agreement contained representations from the holder of the warrant
to support the Company's reasonable belief that the holder acquired the warrant for his own account and not with a view to distribution
in violation of the Securities Act, and that the holder is an "accredited investor" as defined in Regulation D.
Between
June 18, 2013 and June 30, 2013, we accepted subscriptions for a total of 668,000 shares of our common stock in a private placement
from 12 investors. We received gross proceeds of $313,600. The private placement was made solely to “accredited investors,”
as that term is defined in Regulation D under the Securities Act. The securities sold in the private placement were not registered
under the Securities Act, or the securities laws of any state, and were offered and sold in reliance on the exemption from registration
afforded by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder.
On
July 1, 2013 we issued 3,000,000 shares to Gabriel A De Los Reyes in consideration for the conversion of $750,000 of convertible
debt. The securities issued in connection with the conversion of the debt were not registered under the Securities Act, or the
securities laws of any state, and were offered and sold in reliance on the exemption from registration afforded by Section 4(2)
of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering, and Rule 506 promulgated
thereunder.
On
August 19, 2013, we issued 2,000,000 shares to ROK Global Solutions, LLC and 1,000,000 shares to JBA Enterprises, LLC, in connection
with the exercise of a warrant. We received gross proceeds of $300,000. The securities issued in connection with the exercise
of the warrant were not registered under the Securities Act, or the securities laws of any state, and were offered and sold in
reliance on the exemption from registration afforded by Section 4(2) of the Securities Act of 1933, as amended, as a transaction
by the Company not involving any public offering, and Rule 506 promulgated thereunder.
Between
September 20, 2013 and September 25, 2013, we accepted subscriptions for a total of 2,266,000 shares of our common stock in a
private placement from 4 investors. We received gross proceeds of $990,000. The private placement was made solely to “accredited
investors,” as that term is defined in Regulation D under the Securities Act. The securities sold in the private placement
were not registered under the Securities Act, or the securities laws of any state, and were offered and sold in reliance on the
exemption from registration afforded by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company
not involving any public offering, and Rule 506 promulgated thereunder.
On
September 9, 2013, we issued 1,500,000 shares of our common stock to Scott Brown a senior advisor to the Company. The restricted
stock grant vests between January 2014 and September 2014. The shares were valued at $0.88 per share, the fair market value on
the grant date. The shares of common stock will be issued without registration in reliance upon the exemption provided by Section
4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering, and Rule 506
promulgated thereunder. The shares were subsequently forfeited on June 4, 2014 and were cancelled.
On
September 25, 2103 we issued 66,000 shares of our common stock to Jeff Kelley, a consultant, for investor relations services valued
at $29,700. The shares of common stock were issued without registration in reliance upon the exemption provided by Section 4(2)
of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering, and Rule 506 promulgated
thereunder.
On
October 16, 2013, we issued a warrant to purchase 1,000,000 shares of our common stock at
an exercise price of $1.00 per share to Midtown Partners & Co., LLC, an investment banking company, for services to be rendered.
The warrant was valued at $800,000. The warrant was issued without registration in reliance upon the exemption provided
by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder. The warrant agreement contained representations from
the holder of the warrant to support the Company's reasonable belief that the holder acquired the warrant for its own account
and not with a view to distribution in violation of the Securities Act, and that the holder is an "accredited investor"
as defined in Regulation D.
On
October 16, 2013, we accepted subscriptions for a total of 100,000 shares of our common stock in a private placement from Joan
O’Leary. We received gross proceeds of $50,000. The private placement was made solely to “accredited investors,”
as that term is defined in Regulation D under the Securities Act. The securities sold in the private placement were not registered
under the Securities Act, or the securities laws of any state, and were offered and sold in reliance on the exemption from registration
afforded by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder.
On
February 4, 2014, we issued 1,500,000 shares under a restricted stock grant that vest over a period of twelve months commencing
in February 2014 to Cross Pacific Partners, LLC, an entity designated and controlled by Edwin J. Wang. The shares were valued
at $0.64, the fair market value on the grant date. The securities sold in the private placement were not registered under the
Securities Act, or the securities laws of any state, and were offered and sold in reliance on the exemption from registration
afforded by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder.
On
May 19, 2014, we issued 500,000 shares of our common stock valued at $305,000, and on September 5, 2014 we issued an additional
1,300,000 shares of our common stock valued at $429,000 in the aggregate to three individuals, Charles G. Masters, Jr., Tonya
Phillips and Robert M. Snibbe, Jr. in connection with their introduction to us of NACSV. These
securities were issued without registration in reliance upon the exemption provided by Section 4(a)(2) of the Securities Act of
1933, as amended.
On
June 16, 2014, we and our wholly owned subsidiary, GDSI Acquisition Corporation, a Delaware corporation (“Buyer”),
entered into an Equity Purchase Agreement (“EPA”) with Brian A. Dekle and John Ramsey (collectively, “Sellers”)
and North American Custom Specialty Vehicles, LLC, an Alabama limited liability company (“NACSV”), pursuant to which
Buyer purchased all of Sellers’ membership interests in NACSV for total consideration of up to $3.6 million (the “Acquisition”)
with (a) $1.2 million payable at closing as follows: (i) a cash payment of $1.0 million and (ii) 645,161 shares of GDSI’s
restricted common stock valued at $0.31 per share, or $200,000 in the aggregate, (b) up to $2.4 million of additional post-closing
contingent consideration as certain milestones are met as set forth in the EPA through December 31, 2017, and (c) a post closing
date purchase price adjustment of the excess, if any, of the total value of closing date audited assets of NACSV over $1.2 million.
The securities were issued to the Sellers without registration in reliance upon the exemption provided by Section 4(a)(2) of the
Securities Act of 1933, as amended.
On
August 19, 2014 we issued 500,000 shares of our common stock to K. Brett Thackston and 1 million shares of our common stock to
Carricklee Consultants, Ltd. for investor relations services valued
at $150,000 and $330,000, respectively. The shares of common stock were issued without registration in reliance upon the exemption
provided by Section 4(2) of the Securities Act of 1933, as amended, as a transaction by the Company not involving any public offering,
and Rule 506 promulgated thereunder.
Item
16. Exhibits and Financial Statement Schedules.
The
exhibits to the registration statement are listed in the Exhibit Index to this registration statement and are incorporated by
reference herein.
|
(b) |
Financial
Statement Schedules. |
All
financial statement schedules have been omitted, since the required information is not applicable or is not present in amounts
sufficient to require submission of the schedule, or because the information required is included in the consolidated financial
statements and notes thereto.
Item
17. Undertakings.
The
undersigned registrant hereby undertakes:
(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
(i) |
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
|
(ii) |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent 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. |
(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, each prospectus filed pursuant
to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such
date of first use. |
(5) |
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. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement on Form S-1 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City of West Palm Beach, State of Florida on the 9th
day of October, 2014.
|
GLOBAL
DIGITAL SOLUTIONS, INC.
(Registrant) |
|
|
|
By: |
/s/
Richard J. Sullivan |
|
|
Name:
Richard J. Sullivan |
|
|
Title: President
and Chief Executive Officer |
|
|
(Principal
Executive 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.
Name |
|
Title |
|
Date |
|
|
|
|
|
/s/
Richard J. Sullivan |
|
Chief
Executive Officer and Chairman
of
the Board
(Principal
Executive Officer) |
|
October
9, 2014 |
Richard
J. Sullivan |
|
|
|
|
|
|
|
|
|
|
|
|
/s/
David A. Loppert |
|
Chief
Financial Officer
(Principal
Financial Officer and
Principal
Accounting Officer) |
|
October
9, 2014 |
David
A. Loppert |
|
|
|
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
October
9, 2014 |
Stephen
L. Norris |
|
|
|
|
|
|
|
|
|
* |
|
Director
|
|
October
9, 2014 |
William
J. Delgado |
|
|
|
|
|
|
|
|
|
* |
|
Director
|
|
October
9, 2014 |
Arthur
F. Noterman |
|
|
|
|
|
|
|
|
|
* |
|
Director
|
|
October
9, 2014 |
Stephanie
C. Sullivan |
|
|
|
|
*
- Signed by David A. Loppert as attorney-in-fact.
EXHIBIT
INDEX
|
|
|
|
Incorporated
by Reference |
|
Exhibit
No. |
|
Description |
|
Form |
|
Filing
Date /
Period
End |
|
Exhibit
Number |
|
2.1 |
|
Purchase
Agreement, dated as of January 1, 2012, by and between Global Digital Solution, Inc., and Bronco Communications, LLC |
|
|
10 |
|
8/9/13 |
|
|
2.1 |
|
2.2 |
|
Amendment
to Purchase Agreement dated October 15, 2012, by and between Global Digital Solution, Inc., and Bronco Communications, LLC |
|
|
10 |
|
8/9/13 |
|
|
2.2 |
|
2.3 |
|
Agreement
of Merger and Plan of Reorganization dated as of October __, 2012, by and between Global Digital Solution, Inc., and Airtronic
USA, Inc. |
|
|
10/A |
|
9/10/13 |
|
|
2.3 |
|
2.4 |
|
First
Amendment to Agreement of Merger and Plan of Reorganization dated as of August 5, 2013, by and between Global Digital Solution,
Inc., and Airtronic USA, Inc. |
|
|
10/A |
|
9/10/13 |
|
|
2.4 |
|
2.5 |
|
Equity
Purchase Agreement dated June 16, 2014 by and among Brian A. Dekle, John Ramsey, GDSI Acquisition Corporation, Global Digital
Solutions, Inc. and North American Custom Specialty Vehicles, LLC. |
|
|
8-K |
|
6/19/14 |
|
|
2.1 |
|
3.1 |
|
Certificate
of Incorporation |
|
|
10 |
|
8/9/13 |
|
|
3.1 |
|
3.2 |
|
Articles
of Merger |
|
|
10 |
|
8/9/13 |
|
|
3.2 |
|
3.3 |
|
Certificate
of Amendment to Certificate of Incorporation |
|
|
10 |
|
8/9/13 |
|
|
3.3 |
|
3.4 |
|
Bylaws |
|
|
10 |
|
8/9/13 |
|
|
3.4 |
|
3.5 |
|
Certificate
of Amendment to Certificate of Incorporation filed July 7, 2014 |
|
|
8-K |
|
7/30/14 |
|
|
3.1 |
|
5.1
+ |
|
Opinion
of Naccarato & Associates |
|
|
|
|
|
|
|
|
|
10.1 |
|
Debtor
In Possession Note Purchase Agreement by and between the Company and Airtronic USA, Inc. dated October 22, 2012 |
|
|
10 |
|
8/9/13 |
|
|
10.1 |
|
10.2 |
|
8
1/4% Secured Promissory Note in the original principal amount of $750,000 dated October 22, 2012 in favor of the Company |
|
|
10 |
|
8/9/13 |
|
|
10.2 |
|
10.3 |
|
Security
Agreement by and between the Company and Airtronic USA, Inc. dated October 22, 2012 |
|
|
10 |
|
8/9/13 |
|
|
10.3 |
|
10.4 |
|
Bridge
Loan Modification and Ratification Agreement by and between the Company and Airtronic USA, Inc. dated March __, 2013 |
|
|
10/A |
|
9/10/13 |
|
|
10.4 |
|
10.5 |
|
Second
Bridge Loan Modification and Ratification Agreement by and between the Company and Airtronic USA, Inc. dated as of August
5, 2013 |
|
|
10/A |
|
9/10/13 |
|
|
10.5 |
|
10.6 |
|
8
1/4% Secured Promissory Note in the original principal amount of $550,000 dated August 5, 2013, in favor of the Company |
|
|
10/A |
|
9/10/13 |
|
|
10.6 |
|
10.7 |
|
Intellectual
Property Security Agreement dated as of August 5, 2013, by and between Merriellyn Kett and the Company |
|
|
10/A |
|
9/10/13 |
|
|
10.7 |
|
10.8 |
|
Promissory
Note Purchase Agreement by and between the Company and the investors listed therein dated December __, 2012 |
|
|
10 |
|
8/9/13 |
|
|
10.8 |
|
10.9 |
|
Secured
Promissory Note in the original principal amount of $750,000 dated December __, 2012 in favor of Gabriel De Los Reyes |
|
|
10 |
|
8/9/13 |
|
|
10.9 |
|
10.10 |
|
Security
Agreement dated December __, 2012 by and between the Company, Bay Acquisition, LLC and the noteholder identified on Schedule
A |
|
|
10 |
|
8/9/13 |
|
|
10.10 |
|
|
|
|
|
Incorporated
by Reference |
|
Exhibit
No. |
|
Description |
|
Form |
|
Filing
Date /
Period
End |
|
Exhibit
Number |
|
10.11 |
|
Warrant
dated December __, 2012 for 3,000,000 shares of common stock |
|
|
10 |
|
8/9/13 |
|
|
10.11 |
|
10.12 |
|
Amendment
dated May 6, 2013, by and between the Company and Gabriel De Los Reyes |
|
|
10 |
|
8/9/13 |
|
|
10.12 |
|
10.13 |
|
Form
of Subscription Agreement and Securities Purchase Agreement |
|
|
10 |
|
8/9/13 |
|
|
10.13 |
|
10.14 |
|
Form
of Indemnification Agreement |
|
|
10 |
|
8/9/13 |
|
|
10.14 |
|
10.15 |
|
8
1/4% Secured Promissory Note in the original principal amount of $200,000 dated October 10, 2013, in favor of the Company |
|
|
10-K |
|
3/28/14 |
|
|
10.15 |
|
10.16 |
|
Third
Bridge Loan Modification and Ratification Agreement by and between the Company and Airtronic USA, Inc. dated as of October
10, 2013 |
|
|
10-K |
|
3/28/14 |
|
|
10.16 |
|
10.17 |
|
Investment
Banking Agreement with Midtown Partners & Co, LLC dated October 16, 2013 |
|
|
10-K |
|
3/28/14 |
|
|
10.17 |
|
10.18 |
|
Addendum
dated April 16, 2014 to Investment Banking Agreement with Midtown Partners & Co, LLC dated October 16, 2013 |
|
|
DRS/A
|
|
8/5/14
|
|
|
10.17 |
|
10.19
* |
|
Global
Digital Solutions, Inc. 2014 Equity Incentive Plan approved by Shareholders May 19, 2014 |
|
|
DRS/A |
|
8/5/14 |
|
|
10.19 |
|
10.20 |
|
Online
Virtual Office Agreement dated August 19, 2013 |
|
|
DRS/A |
|
8/5/14 |
|
|
10.20 |
|
10.21
* |
|
Restricted
Stock Unit Agreement dated as of August 25, 2014 between Global Digital Solutions, Inc. and Stephen L. Norris |
|
|
8-K/A |
|
8/25/14 |
|
|
10.1 |
|
21.1 |
|
List
of Subsidiaries |
|
|
10-K |
|
3/28/14 |
|
|
21 |
|
23.1 |
|
Consent
of PMB Helin Donovan, LLP |
|
|
S-1
|
|
9/17/14 |
|
|
23.1
|
|
23.2
+ |
|
Consent
of Naccarato & Associates (included in Exhibit 5.1) |
|
|
|
|
|
|
|
|
|
24.1 |
|
Power
of Attorney (included on the Signature Page of this Registration Statement on Form S-1). |
|
|
|
|
|
|
|
|
|
99.1 |
|
NIMS
Standards for Mobile Command Center Vehicles |
|
|
DRS/A
|
|
9/2/14 |
|
|
99.1
|
|
101.INS** |
|
XBRL
Instance |
|
|
S-1 |
|
9/17/14 |
|
|
101.INS
|
|
101.SCH** |
|
XBRL
Taxonomy Extension Scheme |
|
|
S-1
|
|
9/17/14
|
|
|
101.SCH |
|
101.CAL** |
|
XBRL
Taxonomy Extension Calculation |
|
|
S-1
|
|
9/17/14 |
|
|
101.CAL
|
|
101.DEF** |
|
XBRL
Taxonomy Extension Definition |
|
|
S-1 |
|
9/17/14 |
|
|
101.DEF
|
|
101.LAB** |
|
XBRL
Taxonomy Extension Labels |
|
|
S-1 |
|
9/17/14 |
|
|
101.LAB |
|
101.PRE** |
|
XBRL
Taxonomy Extension Presentation |
|
|
S-1 |
|
9/17/14 |
|
|
101.PRE |
|
* |
Management
contract or compensatory plan or arrangement. |
|
|
+ |
Filed
herewith. |
|
|
** |
XBRL
(Extensible Business Reporting Language) information is furnished and not filed or a part of a registration statement or prospectus
of sections 11 or 12 of the Securities Act of 1933, as amended, is deemed not filed for purposes of section 18 of the Securities
Exchange Act of 1934, as amended, and otherwise is not subject to liability under these sections. |
II-10
Exhibit 5.1
OWEN M. NACCARATO, Esq.
Naccarato & Associates
1100 Quail Street, Suite 100
Newport Beach, CA 92660
Office: (949) 851-9261 Facsimile: (949)
851-9262
October 9, 2014
GLOBAL DIGITAL SOLUTIONS, INC.
777 South Flagler Drive, Suite 800 West Tower
West Palm Beach, Florida 33401
Ladies and Gentlemen:
This letter is in reference to the Registration
Statement on Form S-1 (the “Registration Statement”) filed by Global Digital Solutions, Inc., a New Jersey corporation
(the "Company"), with the Securities and Exchange Commission, in connection with the registration under the Securities
Act of 1933, as amended (the “ACT”), for resale by the selling stockholders listed in the prospectus included as part
of the Registration Statement (the “Selling Stockholder”) of 32,082,170 shares of the Company’s common stock,
$0.001 par value per share (the “Common Stock”) which consists of: (i) 645,161 shares of the Company’s common
stock issued in connection with our acquisition of and North American Custom Specialty Vehicles, LLC and 10,377,009 shares issuable
for the True Up payment and contingent consideration in connection with our acquisition of North American Custom Specialty Vehicles,
LLC, (ii) 5,634,000 shares of the Company’s common stock issued to investors in various private placements, (iii)
4,250,000 shares of the Company’s common stock currently issued and outstanding, 4,250,000 shares issuable
upon the conversion of warrants (as defined below) issued in connection with convertible debt, for services, and for investment
banking fees, (iv) 2,676,000 shares of the Company’s common stock issued to certain acquisition, investor relations
professionals and consultants for acquisition, investor relations and marketing services; and (v) 4,250,000 shares
of the Company’s common stock issued for conversion of debt and debt guarantees (the “Notes” as defined below).
In connection with the opinions expressed
herein, we have examined such documents and records and considered such legal matters as we have deemed relevant or necessary for
the purposes of this opinion, including, without limitation, (i) the Registration Statement; (ii) the Articles of Incorporation
and Bylaws of the Company, each as amended to date; (iii) certain resolutions of the board of directors of the Company, relating
to the issuance and sale of the shares, secured convertible promissory notes convertible into a portion of the shares (the “Notes”),
and warrants exercisable for a portion of the shares (the “Warrants”),(iv) that certain Securities Purchase Agreements
by and between the Company and the Selling Stockholders, (the “Purchase Agreement”), and (v) records of meetings and
consents of the Board of Directors of the Company provided to us by the Company. With respect to such examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as reproduced or certified copies, and the authenticity of the originals of those latter documents.
As to questions of fact material to this opinion, we have, to the extent deemed appropriate, relied upon certain representations
of certain officers of the Company.
Based on the foregoing, subject to the
limitations and qualifications set forth herein, and assuming that the full consideration for each share issuable upon the True
Up payment and contingent consideration in connection with our acquisition of North American Custom Specialty Vehicles, LLC is
received by the Company and that full consideration for each share issuable upon exercise of each Warrant is received by the Company
in accordance with the terms of each such Warrant, it is our opinion that the 17,455,161 already issued shares of Common Stock
being sold pursuant to the registration statement are duly authorized and are legally and validly issued, fully paid and non-assessable
and that the 10,377,009 shares of Common Stock to be issued for the True Up payment and contingent consideration in connection
with our acquisition of North American Custom Specialty Vehicles, LLC, and the 4,250,000 shares of Common Stock to be issued upon
the conversion of warrants, being sold pursuant to the registration statement will be duly authorized and legally and validly issued,
fully paid and non-assessable.
We express no opinion as to the effect
or application of any laws or regulations other than the New Jersey Uniform Securities Law and the Federal laws of the United States,
in each case, as currently in effect.
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference to our firm under the caption “Experts” in the Registration
Statement. In so doing, we do not admit that we are in the category of persons whose consent is required under Section 7 of the
Act and the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Owen Naccarato
Owen Naccarato
Naccarato & Associates
Global Digital Solutions (CE) (USOTC:GDSI)
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