UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
iSUN,
INC.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
(State
or other jurisdiction
of
incorporation or organization)
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47-2150172
(I.R.S.
Employer
Identification
No.)
|
400
Avenue D, Suite 10
Williston,
Vermont 05495
Telephone:
(802) 658-3378
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of
Registrant’s Principal
Executive Offices)
Jeffrey
Peck
Chief
Executive Officer
iSun,
Inc.
400
Avenue D, Suite 10
Williston,
Vermont 05495
Telephone:
(802) 658-3378
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies to:
H.
Kenneth Merritt, Jr., Esq.
Merritt
& Merritt
60
Lake Street, PO Box 5839
Burlington,
VT 05402
Telephone:
(802) 658-7830
Approximate
date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as
determined by market and other conditions.
If
the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If
any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box: ☒
If
this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If
this Form is a 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, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the
Exchange Act.
|
Large
accelerated filer: ☐ |
Accelerated
filer: ☐ |
| Non-accelerated
filer: ☒ |
Smaller
reporting company: ☒ |
| |
Emerging
growth company ☒ |
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of Securities Act. ☐
THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES
THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE
IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 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 Preliminary Prospectus is not complete and
may be changed. These securities may not be sold until the
Registration Statement filed with the Securities and Exchange
Commission is effective. This Preliminary Prospectus is not an
offer to sell nor does it seek an offer to buy these securities in
any jurisdiction where the offer or sale is not
permitted.
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PRELIMINARY PROSPECTUS |
SUBJECT TO COMPLETION DATED |
December __, 2022 |
iSUN,
INC.
SHARES
OF COMMON STOCK
This
Prospectus covers up to 5,286,654 shares of our Common Stock that
may be offered for resale or otherwise disposed of by the selling
stockholders set forth under the caption “Selling Stockholders”
elsewhere in this prospectus, including their pledges, assignees or
successors-in-interest.
The
shares of Common Stock offered for resale consist of shares
underlying two Senior Secured Convertible Notes, each issued by us
in a private placement on November 4, 2022.
We
will not receive any proceeds from the sale or other disposition of
the shares of Common Stock by the Selling Stockholders.
The
Selling Stockholders identified in this Prospectus, or their
respective transferees, pledgees, donees or other
successors-in-interest, may offer the Shares from time to time
through public or private transactions at prevailing market prices,
at prices related to prevailing market prices or at privately
negotiated prices. For additional information on the methods of
sale for the Shares that may be used by the Selling Stockholders,
see the section entitled “Plan of Distribution” on page
10.
We
are an “emerging growth company” as defined in the Jumpstart Our
Business Startups Act, and, as such, are allowed to provide more
limited disclosures than an issuer that would not so qualify. This
Prospectus describes the general manner in which the Shares may be
offered and sold. If necessary, the specific manner in which the
Shares may be offered and sold will be described in a supplement to
this Prospectus.
Our
Common Stock is traded on the Nasdaq Capital Market under the
symbol “ISUN.”
Investing
in our Common Stock involves risks. See “Risk Factors”
beginning on page 4 of this Prospectus.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this Prospectus. Any
representation to the contrary is a criminal
offense.
The
date of this Prospectus is December _____ , 2022
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
This
Prospectus is part of a Registration Statement filed with the SEC
using a “shelf” registration process. Under this shelf registration
process, the Selling Stockholders may, from time to time, offer and
sell the shares of Common Stock described in this Prospectus. This
Prospectus provides you with a general description of the
securities which may be offered.
You
should rely only on the information contained in this Prospectus,
any Prospectus Supplement and the documents incorporated by
reference, or to which we have referred you. Neither we nor the
Selling Stockholders have authorized anyone to provide you with
different information. If anyone provides you with different or
inconsistent information, you should not rely on it. This
Prospectus and any Prospectus Supplement does not constitute an
offer to sell, or a solicitation of an offer to purchase, the
Common Stock offered by this Prospectus and any Prospectus
Supplement in any jurisdiction to or from any person to whom or
from whom it is unlawful to make such offer or solicitation of an
offer in such jurisdiction. You should not assume that the
information contained in this Prospectus, any Prospectus
Supplement, as well as information we have previously filed with
the U.S. Securities and Exchange Commission (the “SEC”), is
accurate as of any date other than the date on the front cover of
the applicable document.
If
necessary, the specific manner in which the shares of Common Stock
may be offered and sold will be described in a Supplement to this
Prospectus, which Supplement may also add, update or change any of
the information contained in this Prospectus. To the extent there
is a conflict between the information contained in this Prospectus
and the Prospectus Supplement, you should rely on the information
in the Prospectus Supplement, provided that if any statement in one
of these documents is inconsistent with a statement in another
document having a later date—for example, a document incorporated
by reference in this Prospectus or any Prospectus Supplement—the
statement in the document having the later date modifies or
supersedes the earlier statement.
Neither
the delivery of this Prospectus nor any distribution of Common
Stock pursuant to this Prospectus shall, under any circumstances,
create any implication that there has been no change in the
information set forth or incorporated by reference into this
Prospectus or in our affairs since the date of this Prospectus. Our
business, financial condition, results of operations and prospects
may have changed since such date.
When
used herein, unless the context requires otherwise, references to
the “Company,” “we,” “our” and “us” refer to iSun, Inc., a Delaware
corporation.
OUR COMPANY
This
summary highlights information contained in the documents
incorporated herein by reference. Before making an investment
decision, you should read the entire Prospectus, and our other
filings with the Securities and Exchange Commission, or the SEC,
including those filings incorporated herein by reference,
carefully, including the sections entitled “Risk Factors” and
“Cautionary Statement Regarding Forward-Looking
Statements.”
Overview
We
are one of the largest commercial solar engineering, procurement
and construction (“EPC”) companies in the country and are expanding
across the Northeastern United States. We were a second-generation
family business founded under the name Peck Electric Co. in 1972 as
a traditional electrical contractor. Our core values were and still
are to align people, purpose, and profitability, and since taking
leadership in 1994, Jeffrey Peck, our Chief Executive Officer, has
applied such core values to expand into the solar industry. Today,
we are guided by the mission to facilitate the reduction of carbon
emissions through the expansion of clean, renewable energy and we
believe that leveraging such core values to deploy resources toward
profitable business is the only sustainable strategy to achieve
these objectives.
The
world recognizes the need to transition to a reliable, renewable
energy grid in the next 50 years. Vermont and Hawaii are leading
the way in the U.S. with renewable energy goals of 75% by 2032 and
100% by 2045, respectively. California committed to 100%
carbon-free energy by 2045. The majority of the other states in the
U.S. also have renewable energy goals, regardless of current
Federal solar policy. We are a member of Renewable Energy Vermont,
an organization that advocates for clean, practical and renewable
solar energy. We intend to use near-term incentives to take
advantage of long-term, sustainable energy transformation with a
commitment to the environment and to our shareholders. Our triple
bottom line, which is geared towards people, environment, and
profit, has always been our guide since we began installing
renewable energy and we intend that it remain our guide over the
next 50 years as we construct our energy future.
We
primarily provide EPC services to solar energy customers for
projects ranging in size from several kilowatts for residential
loads to multi-megawatt systems for large commercial and utility
projects. To date, we have installed over 400 megawatts of solar
systems since inception and are focused on profitable growth
opportunities. We believe that we are well-positioned for what we
believe to be the coming transformation to an all renewable energy
economy. We are expanding across the Northeastern United States to
serve the fast-growing demand for clean renewable energy. We are
open to partnering with others to accelerate our growth process,
and we are expanding our portfolio of company-owned solar arrays to
establish recurring revenue streams for many years to come. We have
established a leading presence in the market after five decades of
successfully serving our customers, and we are now ready for new
opportunities and the next five decades of success. As part of our
business strategy in 2021 we acquired iSun Energy, LLC, the
intellectual property of Oakwood Construction Services, Inc,
SolarCommunities, Inc. d/b/a SunCommon and Liberty Electric, Inc in
order to provide our full suite of services to the residential,
community, commercial, industrial and utility solar
markets.
Corporate
Information
We
were incorporated on October 8, 2014 under the laws of the State of
Delaware as Jensyn Acquisition Corp. On June 20, 2019, we changed
our name to The Peck Company Holdings, Inc. On January 19, 2021, we
changed our name to iSun, Inc. Our executive offices are located at
400 Avenue D, Suite 10, Williston, Vermont 05495 and our telephone
number is (802) 658-3378. Our website address is
www.isunenergy.com. The information on our website is not
part of this Prospectus. We have included our website address as a
factual reference and do not intend it to be active link to our
website.
About
This Offering
This
Prospectus relates to the offer and resale by the Selling
Stockholders of shares of our Common Stock. All of the shares, when
sold, will be sold by the Selling Stockholders. The Selling
Stockholders may sell their shares of Common Stock from time to
time at prevailing market prices or at privately negotiated
prices.
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Common
Stock Offered by the Selling Stockholders: |
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5,286,654
shares of Common Stock. |
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Common
Stock Outstanding at December 2, 2022: |
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14,712,701 |
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| Use
of Proceeds: |
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We
will not receive any proceeds from the sale of the shares of Common
Stock offered by this Prospectus. |
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| Risk
Factors: |
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An
investment in the Common Stock offered under this Prospectus is
highly speculative and involves substantial risk. Please carefully
consider the “Risk Factors” section on page 4 and other information
in this Prospectus for a discussion of risks. Additional risks and
uncertainties not presently known to us or that we currently deem
to be immaterial may also impair our business and
operations. |
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Nasdaq
Symbol: |
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ISUN |
RISK FACTORS
An
investment in our Common Stock involves significant risks. You
should carefully consider the risk factors contained in any
Prospectus Supplement and in our filings with the SEC, including
our Annual Report on Form 10-K for the year ended December 31, 2021
filed on April 15, 2022, and Form 10-K/A on May 2, 2022, our Form
10-Q for the quarterly period ended March 31, 2022 filed on May 16,
2021, our Form 10-Q for the quarterly period ended June 30, 2022
filed on August 15, 2022, our form 10-Q for the quarterly period
ended September 30, 2022, filed on November 14, 2022, as well as
all of the information contained in this Prospectus, any Prospectus
Supplement and the documents incorporated by reference herein or
therein, before you decide to invest in our Common Stock. Our
business, prospects, financial condition and results of operations
may be materially and adversely affected as a result of any of such
risks. The value of our Common Stock could decline as a result of
any of these risks. You could lose all or part of your investment
in our Common Stock. Some of our statements in sections entitled
“Risk Factors” are forward-looking statements. The risks and
uncertainties we have described are not the only ones we face.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also affect our business,
prospects, financial condition and results of
operations.
A substantial number of shares of our Common Stock may be issued
pursuant to the conversion terms of the Convertible Notes, which
could cause the price of our Common Stock to
decline.
The
Convertible Notes are immediately convertible upon issuance into
shares of our Common Stock at a conversion price of $2.66 per
share, for an aggregate of approximately 4,699,249 shares (based on
$12,500,000 in aggregate principal amount outstanding as of such
date) without taking into account the accumulation of interest or
the limitations on the conversion of the Convertible Notes as
described elsewhere in this Prospectus. The issuance of these
shares will dilute our other equity holders, which could cause the
price of our Common Stock to decline.
Sales of substantial amounts of our Common Stock by the Selling
Stockholders, or the perception that these sales could occur, could
adversely affect the price of our Common Stock.
The
sale by the Selling Stockholders of a significant number of shares
of Common Stock could have a material adverse effect on the market
price of our Common Stock. In addition, the perception in the
public markets that the Selling Stockholders may sell all or a
portion of their shares as a result of the registration of such
shares for resale pursuant to this Prospectus could also in and of
itself have a material adverse effect on the market price of our
Common Stock. We cannot predict the effect, if any, that market
sales of those shares of Common Stock or the availability of those
shares of Common Stock for sale will have on the market price of
our Common Stock.
The requirement that we repay the Convertible Notes and interest
thereon in cash could adversely affect our business plan,
liquidity, financial condition, and results of
operations.
If
not converted, we are required to repay principal amounts
outstanding under the Convertible Notes and interest thereon in
cash. These obligations could have important consequences on our
business. In particular, they could:
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● |
limit
our flexibility in planning for, or reacting to, changes in our
businesses and the industries in which we operate; |
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● |
increase
our vulnerability to general adverse economic and industry
conditions; and |
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● |
place
us at a competitive disadvantage compared to our
competitors. |
No assurances can be given that we will be successful in making the
required payments under the Convertible Notes.
If we
are unable to make the required cash payments, there could be a
default under the Convertible Notes. In such event, or if a default
otherwise occurs under the Convertible Notes, including as a result
of our failure to comply with the financial or other covenants
contained therein, the holders of the Convertible Notes could cause
the Convertible Notes to accrue interest at the rate of 10% per
annum. In addition, the holders could exercise their remedies as
secured creditors as provide in a Security Agreement dated November
4, 2022.
Restricted covenants under the Convertible Notes could limit our
growth and our ability to finance our operations, fund our capital
needs, respond to changing conditions and engage in other business
activities that maybe in our best interests.
The
Convertible Notes contain a number of affirmative and negative
covenants regarding the payment of dividends, maintenance of its
property, transactions with affiliates, and issue notes and certain
securities.
Our
ability to comply with these covenants may be adversely affected by
events beyond our control, and we cannot assure you that we can
maintain compliance with these covenants. The financial covenants
could limit our ability to make needed expenditures or otherwise
conduct necessary or desirable business activities.
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
This Prospectus, any Prospectus Supplement and the documents that
we incorporate by reference contain forward-looking statements
within the meaning of the Private Securities Litigation Reform Act
of 1995 and other federal securities laws, regarding our business,
financial condition, expenditures, results of operations and
prospects. Words such as “expects,” “anticipates,” “intends,”
“plans,” “planned expenditures,” “believes,” “seeks,” “estimates”
and similar expressions or variations of such words are intended to
identify forward-looking statements, but are not deemed to
represent an all-inclusive means of identifying forward-looking
statements as denoted in this Prospectus, any Prospectus Supplement
and the documents that we incorporate by reference. Additionally,
statements concerning future matters are forward-looking
statements.
Although
forward-looking statements in this Prospectus, any Prospectus
Supplement and the documents that we incorporate by reference
reflect the good faith judgment of our management, such statements
can only be based on facts and factors known by us as of such date.
Consequently, forward-looking statements are inherently subject to
risks and uncertainties and actual results and outcomes may differ
materially from the results and outcomes discussed in or
anticipated by the forward-looking statements. Factors that could
cause or contribute to such differences in results and outcomes
include, without limitation, those specifically addressed under the
heading “Risk Factors” herein and in the documents we
incorporate by reference, as well as those discussed elsewhere in
this prospectus and any prospectus supplement. Readers are urged
not to place undue reliance on these forward-looking statements,
which speak only as of the date of this Prospectus, any Prospectus
Supplement or the respective documents incorporated by reference,
as applicable. Except as required by law, we undertake no
obligation to revise or update any forward-looking statements in
order to reflect any event or circumstance that may arise after the
date of such forward-looking statements. Readers are urged to
carefully review and consider the various disclosures made
throughout the entirety of this Prospectus, any Prospectus
Supplement and the documents incorporated by reference, which
attempt to advise interested parties of the risks and factors that
may affect our business, financial condition, results of operations
and prospects.
PRIVATE PLACEMENT OF THE CONVERTIBLE
NOTES
On
November 4, 2022, we entered into a Securities Purchase Agreement
(the “Purchase Agreement”) with Anson Investments Master Fund LP
and Anson East Master Fund LP (the “Investors”) and consummated the
sale to the Investors of the Senior Secured Convertible Notes (the
“Convertible Notes”) with an aggregate initial principal amount of
$12,500,000. The Notes were sold with an original issue discount of
$750,000. The Investors paid for the Notes to be issued by
delivering $11,750,000 in cash consideration.
Upon
(i) the effectiveness of this Registration Statement covering the
Registrable Securities, (ii) the Stockholder Approval (as defined
in the Purchase Agreement), (iii) the Company’s achievement of
certain revenue and EBITDA targets, (iv) the Company having
sufficient authorized shares of Common Stock, (v) the Company’s
maintenance of certain balance sheet requirements, and (vi) certain
other conditions, the Company and the Investors will consummate a
second closing in which the Company will issue and sell to each
Investor a second Note for an aggregate principal amount of
$12,500,000 having identical terms and conditions as the first
Note, including a six percent (6%) original issue discount, for an
aggregate principal amount of $25,000,000 in Notes that may be
issued and sold pursuant to the Purchase Agreement.
Alliance
Global Partners / A.G.P. (“AGP”) was engaged as the sole placement
agent for the offering of the Convertible Notes. AGP received a
placement agent fee of $718,750 at the closing of the Private
Placement, representing 6.1% of the gross cash proceeds at the
closing. After deducting the placement agent fee, the Company’s
estimated expenses associated with the Private Placement and the
repayment of certain indebtedness of the Company, the Company’s
estimated net cash proceeds at the closing were approximately
$632,461.61.
Purchase
Agreement
The
Purchase Agreement contains certain representations and warranties,
covenants and indemnities customary for similar
transactions.
Convertible
Notes
The
Notes were issued to the Investors on November 4, 2022 and mature
on May 4, 2025 (the “Maturity Date”). Interest shall accrue under
the Notes at the rate of 5% per annum, payable in cash or, at the
Company’s option, in duly authorized, validly issued, fully paid
and non-assessable shares of the Company’s Common Stock, or a
combination thereof. The Notes are convertible into shares of
Common Stock at the election of the holder at any time at an
initial conversion price of $2.66 (the “Conversion Price”). The
Conversion Price is subject to customary adjustments for stock
dividends, stock splits, reclassifications and the like, and
subject to price-based adjustment in the event of any issuances of
Common Stock, or securities convertible, exercisable or
exchangeable for, Common Stock at a price below the then-applicable
Conversion Price (subject to certain exceptions). Beginning on
March 1, 2023 and on the first day of each month thereafter, the
Company will be required to redeem 1/26th of the original principal
amount of each Note, plus accrued but unpaid interest, until the
maturity date of May 4, 2025, on which date all amounts that remain
outstanding will be due and payable in full. Subject to certain
conditions, including certain equity conditions, the Company may
pay the amount due on each monthly redemption date, and the final
amount due at maturity, either in cash, shares of Common Stock or a
combination thereof. The number of shares used to pay any portion
of the Notes in such event would be calculated as 90% of the lowest
daily volume weighted average price of the Common Stock during the
five (5) trading days immediately prior to the payment date. The
Notes may not be prepaid by the Company, other than as specifically
permitted by the Notes.
The
Notes rank senior to all outstanding and future indebtedness of the
Company and its Subsidiaries (as defined in the Purchase
Agreement), subject to certain exclusions including (i) existing
debt relating to bank loans to the Company’s subsidiary Peck
Electric, Co., a Vermont corporation, secured by certain solar
arrays, and (ii) existing vehicle and equipment loans to the
Company’s subsidiaries, Peck Electric Co., a Vermont corporation
and SolarCommunities, Inc., a Vermont benefit corporation, secured
by those vehicles and equipment, and is secured by a first priority
perfected security interest in all of the existing and future
assets of the Company and each Guarantor (as defined in the
Security Agreement), as evidenced by (i) a Security Agreement
entered into at the Closing (the “Security Agreement”), (ii) a
Trademark Security Agreement entered into at the Closing (the
“Trademark Security Agreement”), and (iii) a Guaranty executed by
all direct and indirect subsidiaries of the Company (the
“Guaranty”) pursuant to which each of them has agreed to guaranty
the obligations of the Company under the Notes and the other
Transaction Documents (as defined in the Purchase
Agreement).
Conversion
Limitation
The
Investors will not have the right to convert any portion of a
Convertible Notes, to the extent that, after giving effect to such
conversion, the Investor (and other certain related parties) would
beneficially own in excess of 4.99% of the shares of Common Stock
outstanding immediately after giving effect to such conversion.
This limit may, from time to time, be increased, up to 9.99%, or
decreased; provided that any such increase will not be effective
until the 61st day after delivery of a notice to the Company of
such increase.
Events
of Default
The
Convertible Notes include certain customary and other Events of
Default. In connection with an Event of Default, the Investor may
require the Company to redeem in cash any or all of the Convertible
Notes. The redemption price will be at a premium to the amount due
under the Convertible Notes as described therein.
Covenants
The
Company will be subject to certain customary affirmative and
negative covenants including those regarding the payment of
dividends, maintenance of its property, transactions with
affiliates, and issue notes and certain securities.
Company
Optional Redemption Rights
The
Company may redeem the Convertible Notes at the redemption price
described in the Convertible Notes.
Registration
Rights Agreement
The
Company entered into a Registration Rights Agreement (the
“Registration Rights Agreement”) with the Investors. Pursuant to
the terms of the Registration Rights Agreement, the Company has
agreed to prepare and file with the SEC within 20 days following
the Closing a Registration Statement covering the resale of the
shares of Common Stock issuable upon conversion of the Notes (the
“Registrable Securities”), and to use its best efforts to cause
such Registration Statement to be declared effective under the
Securities Act of 1933, as amended (the “Securities Act”), as
promptly as possible, but in any event no later than 60 days
following the Closing. If the Registration Statement is not filed
within 20 days after the Closing (extended by the Company and the
Investors to December 5, 2022) or is not declared effective by the
applicable deadline set forth in the Registration Rights Agreement,
or under certain other circumstances described in the Registration
Rights Agreement, then the Company shall be obligated to pay, as
partial liquidated damages, to each Investor an amount in cash
equal to 2% of the original principal amount of the Notes each
month until the applicable event giving rise to such payments is
cured. If the Company fails to pay any partial liquidated damages
in full within seven days after the date payable, the Company will
pay interest thereon at a rate of 10% per annum.
Additional
Information
The
foregoing is only a summary of the material terms of the Purchase
Agreement, the Convertible Notes, the Registration Rights Agreement
and the other ancillary transaction documents (collectively, the
“Transaction Documents”), and does not purport to be a complete
description of the rights and obligations of the parties
thereunder.
The
summary of the Transaction Documents is qualified in its entirety
by reference to the forms of such agreements, which are filed as
exhibits to the Company’s Current Report on Form 8-K, filed
November 8, 2022, and incorporated herein by reference.
The
foregoing summary and the exhibits hereto also are not intended to
modify or supplement any disclosures about the Company in the
Company’s reports filed with the SEC. In particular, the agreements
and the related summary are not intended to be, and should not be
relied upon, as disclosures regarding any facts and circumstances
relating to the Company or any of its subsidiaries or affiliates.
The agreements contain representations and warranties by the
Company, which were made only for purposes of that agreements and
as of specified dates. The representations, warranties and
covenants in the agreements were made solely for the benefit of the
parties to the agreements; may be subject to limitations agreed
upon by the contracting parties, including being subject to
confidential disclosures that may modify, qualify or create
exceptions to such representations and warranties; may be made for
the purposes of allocating contractual risk between the parties to
the agreements instead of establishing these matters as facts; and
may be subject to standards of materiality applicable to the
contracting parties that differ from those applicable to the
Investors. In addition, information concerning the subject matter
of the representations, warranties and covenants may change after
the date of the agreements, which subsequent information may or may
not be fully reflected in the Company’s public
disclosures.
As of
the date of this Prospectus, we believe that we will have the
financial ability to make the majority of payments on the
Convertible Notes in cash when due. Accordingly, we do intend, as
of the date of this Prospectus, to make such payments in shares of
our Common Stock when operating cash flow is not available to
satisfy the amortization of the Convertible Note.
We
have not had any material relationships or arrangements with the
Selling Stockholders, their affiliates, or any person with whom the
Selling Stockholders have a contractual relationship regarding this
private placement (or any predecessors of those
persons).
No
assurances can be given that we will be successful in satisfying
the conditions, complying with certain of the terms and conditions
in the issuance of the convertible notes or in arranging further
funding, if needed, or if successful to continue the execution of
our business plan including the development and commercialization
of new products. Failure to obtain such funding will require
management to substantially curtail, if not cease operations, which
will result in a material adverse effect on the financial position
and our results of operations.
USE OF PROCEEDS
The
Selling Stockholders will receive all of the proceeds from the sale
of shares of Common Stock under this Prospectus. We will not
receive any proceeds from these sales. The Selling Stockholders
will pay any agent’s commissions and expenses they incur for
brokerage, accounting, tax or legal services or any other expenses
that they incur in disposing of the shares of Common Stock. We will
bear all other costs, fees and expenses incurred in effecting the
registration of the shares of Common Stock covered by this
Prospectus and any Prospectus Supplement. These may include,
without limitation, all registration and filing fees, SEC filing
fees and expenses of compliance with state securities or “blue sky”
laws.
SELLING STOCKHOLDERS
The
shares of Common Stock being offered by the Selling Stockholders
are those issuable to the Selling Stockholders upon conversion of
the Convertible Notes. For additional information regarding the
issuance of the Convertible Notes, see “Private Placement of the
Convertible Notes” above. We are registering the shares of Common
Stock in order to permit the Selling Stockholders to offer the
shares for resale from time to time. Except for the ownership of
the Convertible Notes issued pursuant to the Securities Purchase
Agreement, the Selling Stockholders have not had any material
relationship with us within the past three years.
The
table below lists the selling stockholders and other information
regarding the beneficial ownership (as determined under Section
13(d) of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder) of the shares of Common Stock
held by the Selling Stockholders. The second column lists the
number of shares of Common Stock beneficially owned by the Selling
Stockholders, as of November 4, 2022, assuming conversion of the
Convertible Notes held by the Selling Stockholders on that date but
taking account of any limitations on conversion set forth therein.
The third column lists the shares of Common Stock being offered by
this prospectus by the Selling Stockholders and does not take in
account any limitations on conversion of the notes set forth
therein.
Under
the terms of the Convertible Notes, a selling stockholder may not
convert the notes to the extent (but only to the extent) such
selling stockholder or any of its affiliates would beneficially own
a number of shares of our Common Stock which would exceed 4.99% of
the outstanding shares of the Company. The number of shares in the
second column reflects these limitations. The Selling Stockholders
may sell all, some or none of their shares in this offering. See
“Plan of Distribution.”
|
Name of Selling Stockholder |
|
Shares of
Common Stock Beneficially Owned Prior to Offering |
|
|
Number of
Shares of Common Stock Being Offered (1) |
|
|
Shares of
Common Stock Beneficially Owned Upon Completion of this Offering
(2) |
|
| Anson Investments Master
Fund LP (3) |
|
|
0 |
|
|
|
4,229,323 |
|
|
|
- |
|
| Anson East Master Fund LP (4) |
|
|
0 |
|
|
|
1,057,331 |
|
|
|
- |
|
(1)
In accordance with the terms of a Registration Rights Agreement
with the holders of the Convertible Notes, this Prospectus
generally covers the resale of 5,286,654 shares of our Common
Stock, which is the maximum number of shares of Common Stock issued
or issuable pursuant to the Notes (without regard to any
limitations on conversion contained therein solely for the purpose
of such calculation) at the Conversion Price. Because the
Conversion Price in connection with Monthly Redemptions (as defined
in the Notes) of the Notes may be adjusted, the number of shares
that will actually be issued may be more or less than the number of
shares being offered by this Prospectus.
(2)
The ownership of shares after the offering assumes the issuance of
all of the shares underlying the Convertible Notes that are offered
for resale hereby, and the sale by the selling stockholders of all
of the shares offered for resale hereby.
(3)
Anson Advisors Inc and Anson Funds Management LP, the Co-Investment
Advisers of Anson Investments Master Fund LP (“Anson”), hold voting
and dispositive power over the Common Shares held by Anson. Bruce
Winson is the managing member of Anson Management GP LLC, which is
the general partner of Anson Funds Management LP. Moez Kassam and
Amin Nathoo are directors of Anson Advisors Inc. Mr. Winson, Mr.
Kassam and Mr. Nathoo each disclaim beneficial ownership of these
Common Shares except to the extent of their pecuniary interest
therein. The principal business address of Anson is Maples
Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman,
KY1-1104, Cayman Islands.
(4)
Anson Advisors Inc and Anson Funds Management LP, the Co-Investment
Advisers of Anson East Master Fund LP (“Anson East”), hold voting
and dispositive power over the Common Shares held by Anson East.
Bruce Winson is the managing member of Anson Management GP LLC,
which is the general partner of Anson Funds Management LP. Moez
Kassam and Amin Nathoo are directors of Anson Advisors Inc. Mr.
Winson, Mr. Kassam and Mr. Nathoo each disclaim beneficial
ownership of these Common Shares except to the extent of their
pecuniary interest therein. The principal business address of Anson
East is Maples Corporate Services Limited, PO Box 309, Ugland
House, Grand Cayman, KY1-1104, Cayman Islands
PLAN OF DISTRIBUTION
The
Selling Stockholders and any of their respective pledgees,
assignees and successors-in-interest may, from time to time, sell
any or all of their securities covered hereby on any trading
market, stock exchange or other trading facility on which the
securities are traded or in private transactions. These sales may
be at fixed or negotiated prices. The Selling Stockholders may use
any one or more of the following methods when selling
securities:
|
|
● |
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers; |
| |
|
|
| |
● |
block
trades in which the broker-dealer will attempt to sell the
securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction; |
| |
|
|
| |
● |
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its account; |
| |
|
|
| |
● |
an
exchange distribution in accordance with the rules of the
applicable exchange; |
| |
|
|
| |
● |
privately
negotiated transactions; |
| |
|
|
| |
● |
settlement
of short sales; |
| |
|
|
| |
● |
in
transactions through broker-dealers that agree with the Selling
Stockholders to sell a specified number of such securities at a
stipulated price per security; |
| |
|
|
| |
● |
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise; |
| |
|
|
| |
● |
a
combination of any such methods of sale; or |
| |
|
|
| |
● |
any
other method permitted pursuant to applicable law. |
The
Selling Stockholders may also sell securities under Rule 144 under
the Securities Act, if available, rather than under this
Prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any
broker-dealer acts as agent for the purchaser of securities, from
the purchaser) in amounts to be negotiated, but, except as set
forth in a supplement to this prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2440; and in the case of a principal
transaction a markup or markdown in compliance with FINRA
IM-2440.
In
connection with the sale of the securities covered hereby, the
Selling Stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the securities in the course of hedging
the positions they assume. The Selling Stockholders may also sell
securities short and deliver these securities to close out their
short positions, or loan or pledge the securities to broker-dealers
that in turn may sell these securities. The Selling Stockholders
may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or
more derivative securities which require the delivery to such
broker-dealer or other financial institution of securities offered
by this prospectus, which securities such broker-dealer or other
financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are
involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities Act in
connection with such sales. In such event, any commissions received
by such broker-dealers or agents and any profit on the resale of
the securities purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each Selling
Stockholder has informed us that it does not have any written or
oral agreement or understanding, directly or indirectly, with any
person to distribute the securities.
We
are required to pay certain fees and expenses incurred by us
incident to the registration of the securities. We have agreed to
indemnify the Selling Stockholders against certain losses, claims,
damages and liabilities, including liabilities under the Securities
Act.
Because
the Selling Stockholders may be deemed to be an “underwriter”
within the meaning of the Securities Act, they will be subject to
the prospectus delivery requirements of the Securities Act,
including Rule 172 thereunder. In addition, any securities covered
by this Prospectus which qualify for sale pursuant to Rule 144
under the Securities Act may be sold under Rule 144 rather than
under this Prospectus. Each Selling Stockholder has advised us that
there is no underwriter or coordinating broker acting in connection
with the proposed sale of the resale securities by the Selling
Stockholder.
We
agreed to keep this Prospectus effective until the earlier of (i)
the date on which the securities may be resold by the Selling
Stockholders without registration and without regard to any volume
or manner-of-sale limitations by reason of Rule 144, without the
requirement for us to be in compliance with the current public
information requirement under Rule 144 under the Securities Act or
any other rule of similar effect or (ii) all of the securities have
been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
securities will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In
addition, in certain states, the resale securities covered hereby
may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied
with.
Under
applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to
the Common Stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In
addition, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of
purchases and sales of the Common Stock by the Selling Stockholders
or any other person. We will make copies of this Prospectus
available to the Selling Stockholders and have informed the Selling
Stockholders of the need to deliver a copy of this prospectus to
each purchaser at or prior to the time of the sale (including by
compliance with Rule 172 under the Securities Act).
LEGAL MATTERS
The
validity of the Common Stock offered by this Prospectus will passed
upon by Merritt & Merritt, Burlington, Vermont.
EXPERTS
The
consolidated financial statements of iSun, Inc. as of December 31,
2021 and December 31, 2020 and for the years then ended, which are
incorporated in this Prospectus by reference to the Annual Report
on Form 10-K for the year ended December 31, 2021 have been so
incorporated in reliance on the report of Marcum LLP, an
independent registered public accounting firm, given on the
authority of said firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We
are subject to the reporting and information requirements of the
Securities Exchange Act of 1934, as amended, or the Exchange Act,
and as a result file periodic reports and other information with
the SEC. These periodic reports and other information will be
available for inspection and copying at the SEC’s public reference
room and the website of the SEC referred to below. We also make
available on our website under “SEC Filings,” free of charge, our
Proxy Statements, Annual Reports on Form 10-K, Quarterly Reports on
Form 10-Q, Current reports on Form 8-K and amendments to those
reports as soon as reasonably practicable after we electronically
file such materials with or furnish them to the SEC. Our website
address is www.isunenergy.com. This reference to our
website is an inactive textual reference only, and is not a
hyperlink. The contents of our website are not part of this
Prospectus, and you should not consider the contents of our website
in making an investment decision with respect to the Common Stock
offered hereby.
This
Prospectus is part of a Registration Statement on Form S-3 that we
filed under the Securities Act with the SEC with respect to the
shares of our Common Stock offered by the Selling Stockholders
through this Prospectus. This Prospectus is filed as a part of that
Registration Statement and does not contain all of the information
contained in the Registration Statement and Exhibits. We refer you
to our Registration Statement and each Exhibit attached to it for a
more complete description of matters involving us, and the
statements that we have made in this Prospectus are qualified in
their entirety by reference to these additional
materials.
The
SEC maintains a website that contains reports and other information
about issuers, like us, who file electronically with the SEC. The
address of that website is http://www.sec.gov. This reference to
the SEC’s website is an inactive textual reference only, and is not
a hyperlink.
INCORPORATION OF DOCUMENTS BY
REFERENCE
We
are “incorporating by reference” certain documents that we file
with the SEC, which means that we can disclose important
information to you by referring you to those documents. The
information in the documents incorporated by reference is
considered to be part of this Prospectus. Statements contained in
documents that we file with the SEC and that are incorporated by
reference in this Prospectus will automatically update and
supersede information contained in this Prospectus, including
information in previously filed documents or reports that have been
incorporated by reference in this Prospectus, to the extent the new
information differs from or is inconsistent with the old
information.
We
have filed the following documents with the SEC. These documents
are incorporated herein by reference as of their respective dates
of filing:
(1)
Our Annual Report on Form 10-K for the fiscal year
ended December 31, 2021, as filed with the SEC on April 15, 2022,
and Form 10-K/A, as filed with the
SEC on May 2, 2022;
(2)
Our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2022, as filed with the SEC on May 16, 2022;
(3)
Our Quarterly Report on Form 10-Q for the quarter ended
June 30, 2022, as filed with the SEC on August 15, 2022.
(4)
Our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2022, as filed with the SEC on November 14,
2022.
(4)
Our Current Reports on Form 8-K and 8-K/A, as applicable, as filed
with the SEC on January 5, 2022; January 13, 2022; February 2, 2022; March 14, 2022; July 25, 2022; and November 8, 2022.
(4)
The description of our Common Stock contained in our Registration
Statement on Form 8-A filed with the SEC on
March 1, 2016, including any amendments and reports filed for the
purpose of updating such description.
All
documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act (1) after the date of the filing of the
Registration Statement of which this Prospectus forms a part and
prior to its effectiveness and (2) until all of the Common Stock to
which this Prospectus relates has been sold or the offering is
otherwise terminated, except in each case for information contained
in any such filing where we indicate that such information is being
furnished and is not to be considered “filed” under the Exchange
Act, will be deemed to be incorporated by reference in this
prospectus and any accompanying Prospectus Supplement and to be a
part hereof from the date of filing of such documents.
We
will provide a copy of the documents we incorporate by reference,
at no cost, to any person who receives this Prospectus. To request
a copy of any or all of these documents, you should write or
telephone us at 400 Avenue D, Suite 10, Williston, VT 05495,
Attention: Mr. John Sullivan, CFO, (802) 658-7738.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
ITEM
14. |
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
The
following is a statement of approximate expenses to be incurred by
iSun, Inc., or the Company, we, us or our, in connection with the
distribution of the Common Stock registered under this Registration
Statement:
| |
|
Amount |
|
| Registration fee under
Securities Act of 1933 |
|
$ |
978.75 |
|
| Legal fees and expenses |
|
$ |
35,000.00
|
|
| Accountant’s fees and expenses |
|
$ |
7,500.00
|
|
| Miscellaneous
fees and expenses |
|
$ |
1,000.00
|
|
| Total |
|
$ |
44,478.75
|
|
|
ITEM
15. |
INDEMNIFICATION OF DIRECTORS AND OFFICERS. |
Section
145 of the Delaware General Corporation Law (which we refer to as
the DGCL) provides, in general, that a corporation incorporated
under the laws of the State of Delaware, as we are, may indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding (other than a derivative action by or in the right of
the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another enterprise, against 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 if such person
acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person’s conduct was unlawful. In
the case of a derivative action, a Delaware corporation may
indemnify any such person against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
corporation, except that no indemnification will be made in respect
of any claim, issue or matter as to which such person will have
been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or
any other court in which such action was brought determines such
person is fairly and reasonably entitled to indemnity for such
expenses.
Our
Certificate of Incorporation and bylaws provide that we will
indemnify our directors, officers, employees and agents to the
extent and in the manner permitted by the provisions of the DGCL,
as amended from time to time, subject to any permissible expansion
or limitation of such indemnification, as may be set forth in any
stockholders’ or directors’ resolution or by contract. In addition,
our director and officer indemnification agreements with each of
our directors and officers provide, among other things, for the
indemnification to the fullest extent permitted or required by
Delaware law, provided that no indemnitee will be entitled to
indemnification in connection with any claim initiated by the
indemnitee against us or our directors or officers unless we join
or consent to the initiation of the 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 will be prospective only and will not adversely affect
any limitation on the liability of any of our directors or officers
existing as of the time of such repeal or modification.
We
are also permitted to apply for insurance on behalf of any
director, officer, employee or other agent for liability arising
out of his actions, whether or not the DGCL would permit
indemnification.
The
Exhibits filed with this Registration Statement are set forth on
the “Exhibit Index” set forth elsewhere herein.
(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;
(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, that Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii)
of this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by
the Registrant pursuant to section 13 or section 15(d) of the
Exchange Act 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, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3)
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act to any purchaser:
(i)
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
(ii)
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 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;
(5)
That, for the purpose of determining liability of the Registrant
under the Securities Act to any purchaser in the initial
distribution of the securities, the undersigned Registrant
undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this Registration Statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned Registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant
to Rule 424;
(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 undersigned Registrant hereby undertakes that, for the purposes
of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or
15(d) of the 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.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Williston,
State of Vermont, on the 5th day of December,
2022.
|
|
ISUN,
INC. |
|
|
|
|
|
|
By: |
/s/
Jeffrey Peck |
|
|
Name: |
Jeffrey
Peck |
|
|
Title: |
Chief
Executive Officer |
POWER OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of iSun, Inc., a Delaware corporation, do hereby
constitute and appoint Jeffrey Peck as his true and lawful
attorney-in-fact and agent, with full power of substitution and
re-substitution, for him and in his name, place, and stead, in any
and all capacities, to sign any and all amendments (including
post-effective amendments, exhibits thereto and other documents in
connection therewith) to this Registration Statement and to file
the same, with all Exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent,
or his substitute or substitutes, 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 below by the following
persons in the capacities and on the dates indicated.
|
Person |
|
Capacity |
|
Date |
| |
|
|
|
|
|
/s/
Jeffrey Peck |
|
President,
Chief Executive Officer and Director |
|
December
5, 2022 |
| Jeffrey
Peck |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
|
/s/
John Sullivan |
|
Chief
Financial Officer |
|
December
5, 2022 |
| John
Sullivan |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
|
/s/
Andrew Matthy |
|
Director |
|
December
5, 2022 |
| Andrew
Matthy |
|
|
|
|
| |
|
|
|
|
|
/s/
Frederick Myrick |
|
Director |
|
December
5, 2022 |
| Frederick
Myrick |
|
|
|
|
| |
|
|
|
|
|
/s/
Claudia Meer |
|
Director |
|
December
5, 2022 |
| Claudia
Meer |
|
|
|
|
| |
|
|
|
|
|
/s/
Stewart Martin |
|
Director |
|
December
5, 2022 |
| Stewart
Martin |
|
|
|
|
EXHIBIT INDEX
|
Exhibit
No. |
|
Description |
| 3.1 |
|
Third
Amended and Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to the Company’s Current Report on Form
8-K filed with the SEC on February 2, 2022). |
| 3.2 |
|
Bylaws
(incorporated by reference to Exhibit 3.3 filed with the Company’s
Registration Statement on Form S-1 filed with the SEC on November
23, 2015). |
| 4.1 |
|
Specimen
Common Stock Certificate (incorporated by reference to Exhibit 4.2
filed with the Company’s Registration Statement on Form S-1 filed
with the SEC on November 23, 2015). |
| 4.2 |
|
Senior
Secured Convertible Notes, issued by iSun, Inc. dated November 4,
2022 (incorporated by reference to Exhibit 4.1 to the Company’s
Current Report on Form 8-K filed with the SEC on November 8,
2022). |
| 5.1* |
|
Opinion of Merritt & Merritt |
| 10.1 |
|
Securities
Purchase Agreement between iSun, Inc. and certain Purchasers, dated
November 4, 2022 (incorporated by reference to Exhibit 10.5 to the
Company’s Current Report on Form 8-K filed with the SEC on November
8, 2022). |
| 10.2 |
|
Registration
Rights Agreement between iSun, Inc. and certain Purchasers, dated
November 4, 2022 (incorporated by reference to Exhibit 10.1 to the
Company’s Current Report on Form 8-K filed with the SEC on November
8, 2022). |
| 10.3 |
|
Security
Agreement between iSun, Inc. and certain Purchasers, dated November
4, 2022 (incorporated by reference to Exhibit 10.2 to the Company’s
Current Report on Form 8-K filed with the SEC on November 8,
2022). |
| 23.1* |
|
Consent
of Marcum LLP. |
| 23.3 |
|
Consent of Merritt & Merritt (included in Exhibit 5
above) |
| 24.1* |
|
Power
of Attorney (included in the signature page
hereto). |
|
107*
|
|
Filing Fees |
__________
*Filed
herewith.
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