UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a)
of
the Securities Exchange Act of 1934
Filed
by the Registrant ☒
Filed
by a Party other than the Registrant ☐
Check
the Appropriate Box:
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Preliminary
Proxy Statement |
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Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
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Definitive
Proxy Statement |
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Definitive
Additional Materials |
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Soliciting
Material Under Rule 14a-12 |
iSUN,
INC.
(Name
of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement if other than the Registrant)
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of Filing Fee (Check the appropriate box): |
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No
fee required |
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Fee
computed on table below per Exchange Act Rules 14a-6(i) (1) and 0-11. |
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unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
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box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its
filing. |
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iSun,
Inc.
400
Avenue D, Suite 10
Williston,
VT 05495
Dear
Stockholder:
You
are cordially invited to attend a Special Meeting of the Stockholders (the “Meeting”) of iSun, Inc., a Delaware corporation
(the “Company”). Due to the ongoing public health impact of the coronavirus outbreak (COVID-19) and to support the health
and well-being of our employees and stockholders, the Special Meeting of Stockholders will be a completely “virtual meeting.”
The Meeting will be held exclusively online via live audio-only webcast on January 24, 2023 at 2:00 p.m. (Eastern Time). The Company
will be holding the Special Meeting as a virtual meeting via live audio-only webcast.
There
will not be a physical meeting location. The Meeting can be accessed by visiting https://www.virtualshareholdermeeting.com/ISUN2023SM,
where you will be able to attend the Meeting live, have an opportunity to submit questions, and vote online. We encourage you to allow
ample time for online check-in which begins at 1:45 P.M. Eastern Time. Please note that you will not be able to attend the Meeting in
person.
The
principal business of the Meeting will be:
1.
to approve, for the purposes of Listing Rule 5635 of The Nasdaq Stock Market (“Nasdaq”), the issuance of shares of the Company’s
Common Stock under the Senior Secured Convertible Notes issued by the Company on November 4, 2022 (“Proposal 1” or the “Convertible
Note Proposal”).
2.
to approve the adjournment of the Special Meeting, if necessary, to solicit additional proxies in the event that there are not sufficient
votes at the time of the Special Meeting to approve the other proposal (“Proposal 2” or the “Adjournment Proposal”).
The
details of this transaction are outlined in this Notice and Proxy and other public filings we have made.
The
record date for the Meeting is December 12, 2022. Only stockholders of record at the close of business on that date may vote at
the Meeting or any adjournment thereof. We hope you will be able to attend the Meeting. Whether you plan to attend the Meeting or not,
it is important that your shares are represented. Therefore, you are urged to vote by proxy by following the instructions contained in
the Proxy Statement. This will ensure your proper representation at the Meeting, whether or not you can attend.
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By
Order of the Board of Directors |
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/s/
Jeffrey Peck |
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Jeffrey
Peck |
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Chairman |
iSun,
Inc.
400
Avenue D, Suite 10
Williston,
VT 05495
NOTICE
OF VIRTUAL SPECIAL MEETING OF STOCKHOLDERS
To
Be Held On January 24, 2023
To
the Stockholders of iSun, Inc.:
NOTICE
IS HEREBY GIVEN that a Special Meeting of Stockholders (the “Meeting”) of iSun, Inc., a Delaware corporation (the “Company,”
“we,” “our,” or “us”) will be held exclusively online via live audio-only webcast at 2:00 p.m. Eastern
Time on January 24, 2023, or such later date or dates as such Meeting may be adjourned. A Proxy Statement and a Proxy Card are enclosed.
The
Meeting will be held virtually and there will not be a physical meeting location. The Meeting can be accessed by visiting https://www.virtualshareholdermeeting.com/ISUN2023SM,
where you will be able to attend the Meeting live, have an opportunity to submit questions, and vote online. We encourage you to allow
ample time for online check-in, which begins at 1:45 P.M. Eastern Time. Please note that you will not be able to attend the Meeting in
person. We are holding the Meeting for the purpose of considering and taking action on the following proposals:
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1. |
to
approve, for the purposes of Listing Rule 5635 of The Nasdaq Stock Market (“Nasdaq”), the issuance of shares of the Company’s
Common Stock upon conversion of the Senior Secured Convertible Notes issued by the Company on November 4, 2022. |
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2. |
to
approve the adjournment of the Special Meeting, if necessary, to solicit additional proxies in the event that there are not sufficient
votes at the time of the Special Meeting to approve the other proposal. |
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3. |
To
transact such other business as may be properly brought before the Meeting and any adjournments thereof. |
These
matters are more fully described in the Proxy Statement accompanying this Notice.
Our
Board of Directors (the “Board”) has fixed the close of business on December 12, 2022 as the record date (the “Record
Date”) for the determination of stockholders entitled to notice of and to vote at the Meeting or any adjournment thereof. A list
of stockholders eligible to vote at the Meeting will be available for review during our regular business hours at our principal offices
in Williston, Vermont for the 10 days prior to the Meeting for review for any purposes related to the Meeting.
THE
iSUN 2023 SPECIAL MEETING CAN BE ACCESSED BY VISITING HTTPS://WWW.VIRTUALSHAREHOLDERMEETING.COM/ISUN2023SM, WHERE YOU WILL BE ABLE TO
LISTEN TO THE MEETING LIVE, HAVE AN OPPORTUNITY TO SUBMIT QUESTIONS AND VOTE ONLINE. WHETHER OR NOT YOU EXPECT TO ATTEND THE MEETING,
TO ENSURE YOUR REPRESENTATION AT THE MEETING WE URGE YOU TO SUBMIT A PROXY TO VOTE YOUR SHARES AS PROMPTLY AS POSSIBLE BY (1) VISITING
THE INTERNET SITE LISTED ON THE ENCLOSED iSUN PROXY CARD, (2) CALLING THE TOLL-FREE NUMBER LISTED ON THE ENCLOSED iSUN PROXY CARD OR
(3) SUBMITTING YOUR ENCLOSED iSUN PROXY CARD BY MAIL BY USING THE PROVIDED SELF-ADDRESSED, STAMPED ENVELOPE.
Submitting
a proxy will not prevent you from attending the Meeting by means of remote communication and voting at the Meeting, but it will help
to ensure that a quorum is present and avoid added solicitation costs. Any holder of record of iSun Common Stock as of the Record Date
who attends the Meeting may vote virtually at the Meeting, thereby revoking any previous proxy. In addition, a proxy may also be revoked
in writing before the Meeting in the manner described in the accompanying Proxy Statement. If your shares are held in the name of a bank,
brokerage firm or other nominee/agent, please follow the instructions on the voting instruction form furnished by your bank, brokerage
firm or other nominee/agent.
Williston,
Vermont
Dated:
December 12, 2022
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By
Order of the Board of Directors |
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/s/
Jeffrey Peck |
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Jeffrey
Peck |
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Chairman |
iSun,
Inc.
400
Avenue D, Suite 10
Williston,
VT 05495
PROXY
STATEMENT
FOR
VIRTUAL SPECIAL MEETING OF STOCKHOLDERS
This
Proxy Statement is furnished to stockholders in connection with the solicitation of proxies by the Board of Directors (the “Board”)
of iSun, Inc. (“iSun,” the “Company,” “we,” “our,” or “us”) in connection
with a virtual Special Meeting of Stockholders of the Company to be held exclusively online via live audio-only webcast on January 24,
2023 at 2:00 p.m. Eastern Time (the “Meeting”).
GENERAL
INFORMATION ABOUT SOLICITATION VOTING AND ATTENDING
Who
Can Vote at the Virtual Special Meeting?
Each
share of the Company’s Common Stock has one vote on each Proposal. Only stockholders of record as of the close of business on December
12, 2022 (the “Record Date”) are entitled to receive notice of, attend and vote at the virtual Special Meeting of
Stockholders. You may attend the Meeting by visiting https://www.virtualshareholdermeeting.com/ISUN2023SM, where you will be able to
listen to the Meeting live, have an opportunity to submit questions, and vote your shares of Common Stock if you held such shares as
of the close of business on the Record Date. As of the Record Date, there were 14,712,701 shares of the Company’s Common Stock
outstanding and entitled to vote.
Counting
Votes
Consistent
with state law and our bylaws, the presence, virtually or by proxy, of at least a majority of the shares entitled to vote at the Meeting
will constitute a quorum for purposes of voting on a particular matter at the Meeting. Once a share is represented for any purpose at
the Meeting, it is deemed present for quorum purposes for the remainder of the Meeting and any adjournment thereof unless a new record
date is set for the adjournment. Shares held of record by stockholders or their nominees who do not vote by proxy or attend the Meeting
virtually will not be considered present or represented and will not be counted in determining the presence of a quorum. Signed proxies
that withhold authority or reflect abstentions and “broker non-votes” will be counted for purposes of determining whether
a quorum is present. “Broker non-votes” are proxies received from banks, brokerage firms or other nominees/agents holding
shares on behalf of their clients who have not been given specific voting instructions from their clients with respect to matters being
voted on.
Pursuant
to our Third Amended and Restated Certificate of Incorporation the vote of: (i) a majority of the voting power of the shares of iSun
Common Stock, present or represented by proxy at the iSun Special Meeting, is required to approve the Convertible Note Proposal and the
Adjournment Proposal. The only capital stock of the Company currently outstanding is Common Stock.
We
strongly encourage you to provide instructions to your bank, brokerage firm, or other nominee/agent by voting your proxy. This action
ensures that your shares will be voted in accordance with your wishes at the Meeting.
Attending
the Meeting
You
or your authorized proxy may attend the Meeting if you were a registered or beneficial stockholder of iSun Common Stock as of the Record
Date.
To
participate in the Meeting, visit https://www.virtualshareholdermeeting.com/ISUN2023SM and enter the 16-digit control number included
on your Proxy Card. The virtual Meeting allows stockholders to submit questions during the Meeting in the question box provided at https://www.virtualshareholdermeeting.com/ISUN2023SM.
We will respond to as many properly submitted questions during the relevant portion of the Meeting agenda as time allows.
If
we experience technical difficulties during the Meeting (e.g., a temporary or prolonged power outage), we will determine whether the
Meeting can be promptly reconvened (if the technical difficulty is temporary) or whether the Meeting will need to be reconvened on a
later day (if the technical difficulty is more prolonged). If you encounter any difficulties accessing the Virtual Meeting during the
check-in or meeting time, please call the technical support number that will be posted on the Virtual Shareholder Meeting login page.
If
you are a Stockholder of Record (that is, you hold your shares through iSun’s transfer agent, Continental Stock Transfer &
Trust), you do not need to register to attend the Meeting virtually on the internet. Please follow the instructions on the Proxy Card
that you received. No proof of ownership is necessary because iSun can verify your ownership.
If
you own shares in street name through an intermediary, such as a bank, broker or other nominee/agent, please follow the voting instructions
provided to you by that nominee/agent in order to vote your shares.
SOLICITATION
AND REVOCABILITY OF PROXIES
The
enclosed proxy for the Meeting is being solicited by the Board. Stockholders of record may vote by mail, telephone, or via the Internet.
The toll-free telephone number and Internet web site are listed on the proxy. If you vote by telephone or via the Internet, you do not
need to return your Proxy Card, but you will need the control number printed on the Proxy Card to vote. If you choose to vote by mail,
please mark, date and sign the Proxy Card, and then return it in the enclosed envelope (no postage is necessary if mailed within the
United States). Any person giving a proxy may revoke it at any time prior to the exercise thereof by filing with our Secretary a written
revocation or by duly executed proxy bearing a later date. The proxy may also be revoked by a stockholder attending the virtual Meeting,
withdrawing the proxy and voting virtually, but you will need the control number printed on the Proxy Card.
The
expense of preparing, printing and mailing the form of proxy and the material used in the solicitation thereof will be borne by us. In
addition to solicitation by mail, proxies may be solicited by the directors, officers and our regular employees (who will receive no
additional compensation therefor) by means of personal interview, telephone or by other means of communication. It is anticipated that
banks, brokerage firms and other institutions, custodians, nominees/agents, fiduciaries or other record holders will be requested to
forward the soliciting material to persons for whom they hold shares and to seek authority for the execution of proxies; in such cases,
we will reimburse such holders for their charges and expenses.
QUESTIONS
AND ANSWERS ABOUT THIS PROXY MATERIAL AND VOTING
Why
did I receive these proxy materials?
We
are providing this Proxy Statement in connection with the solicitation by the Board of proxies to be voted at the Meeting, or at any
postponements or adjournments thereof. This Proxy Statement contains important information for you to consider when deciding how to vote
on the matters brought before the Meeting. You are invited to attend the virtual Meeting to vote on the proposals described in this Proxy
Statement. However, you do not need to attend the virtual Meeting to vote your shares. Instead, you may vote your shares using one of
the other voting methods described in this Proxy Statement.
Whether
or not you expect to attend the Meeting, please vote your shares as soon as possible in order to ensure your representation at the Meeting.
Can
I access these proxy materials on the Internet?
Yes.
The Notice of Annual Meeting and Proxy Statement are available for viewing, printing, and downloading at http://www.proxyvote.com.
All materials will remain posted on http://www.proxyvote.com at least until the conclusion of the Meeting.
Who
can vote at the Meeting?
Each
share of the Company’s Common Stock has one vote on each Proposal. Only stockholders of record at the close of business on December
12, 2022, the Record Date for the Meeting, will be entitled to vote at the Meeting. On the Record Date there were 14,712,701 shares
of Common Stock (each entitled to one vote) outstanding.
What
is the difference between a stockholder of record and a beneficial owner of shares held in street name?
Stockholder
of Record. If your shares are registered directly in your name with the Company’s transfer agent, Continental Stock Transfer &
Trust, you are considered the stockholder of record with respect to those shares, and the Notice, Proxy Statement and a Proxy Card were
sent directly to you by the Company.
Beneficial
Owner of Shares Held in Street Name. If your shares are held in an account at a bank, brokerage firm or other nominee/agent, then you
are the beneficial owner of shares held in “street name,” and the Notice was forwarded to you by that organization. The organization
holding your account is considered the stockholder of record for purposes of voting at the Annual Meeting. As the beneficial owner, you
have the right to instruct that organization on how to vote the shares held in your account.
Stockholder
of Record: Shares Registered in Your Name
If
on the Record Date, your shares of iSun, Inc. Common Stock were registered directly in your name with our transfer agent, then you are
a stockholder of record. As a stockholder of record, you may vote virtually at the Meeting or vote by proxy. Whether or not you plan
to virtually attend the Meeting, we urge you to fill out and return the enclosed Proxy Card to ensure your vote is counted. When you
mail in your Proxy Card, please keep a copy of the control number printed on your Proxy Card in case you wish to revoke the proxy on
your Proxy Card, change your vote at the virtual Meeting or change your vote via the Internet or telephone as otherwise provided herein.
Beneficial
Owner: Shares Registered in the Name of a Bank, Brokerage Firm or Other Nominee/Agent
If
on the Record Date, your shares of iSun, Inc. Common Stock were held in an account at a bank, brokerage firm or other nominee/agent,
then you are the beneficial owner of shares held in “street name” and these proxy materials are being forwarded to you by
that organization. The organization holding your account is considered the stockholder of record for purposes of voting at the Meeting.
As the beneficial owner, you have the right to direct your bank, brokerage firm or other nominee/agent on how to vote the shares in your
account. You are also invited to attend the virtual Meeting. However, since you are not the stockholder of record, you may not vote your
shares virtually at the Meeting unless you request and obtain a signed letter or other valid proxy from your bank, brokerage firm or
other nominee/agent.
What
proposals am I voting on?
There
are two matters scheduled for a vote at the Meeting: (i) to approve, for the purposes of Nasdaq Listing Rule 5635, the issuance of shares
of the Company’s Common Stock upon conversion of the Senior Secured Convertible Notes issued by the Company on November 4, 2022,
and (ii) to approve the adjournment of the Special Meeting, if necessary, to solicit additional proxies in the event that there are not
sufficient votes at the time of the Special Meeting to approve the other proposals.
The
Board does not intend to bring any other matters before the Meeting and is not aware of anyone else who will submit any other matters
to be voted on. However, if any other matters properly come before the Meeting, the individuals named on the Proxy Card, or their substitutes,
will be authorized to vote on those matters in their own judgment.
How
many votes do I have?
On
each matter to be voted upon, you have one vote for each share of Common Stock you owned as of the Record Date.
What
is the quorum requirement?
A
quorum of stockholders is necessary to hold a valid Meeting. A quorum will be present if a majority of the outstanding shares of Common
Stock entitled to vote are present at the virtual Meeting.
Your
shares will be counted towards the quorum only if you submit a valid proxy, have voted via the Internet, have voted via telephone or
vote virtually at the Meeting.
If
you submit your proxy vote via the Internet or by telephone but abstain from voting or withhold authority to vote on one or more matters,
as applicable, your shares will be counted as present at the Meeting for the purpose of determining a quorum.
Broker
non-votes will be counted towards the quorum requirement.
Your
shares also will be counted as present at the Meeting for the purpose of calculating the vote on the particular matter with respect to
which you abstained from voting or withheld authority to vote, as further provided below.
If
there is no quorum, the Chairman or a majority of the votes present at the Meeting may adjourn the meeting to another date.
How
do I vote?
The
procedures for voting are set forth below:
Stockholder
of Record: Shares Registered in Your Name
If
you are a stockholder of record, you may vote virtually at the Meeting, vote by proxy using the Proxy Card, vote via the Internet or
by telephone. Whether or not you plan to attend the Meeting, we urge you to vote by proxy, via the Internet or by telephone to ensure
your vote is counted. You may still attend the Meeting and vote virtually if you have already voted by proxy, via the Internet or by
telephone. You may vote as follows:
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To
participate in the virtual Meeting, visit https://www.virtualshareholdermeeting.com/ISUN2023SM and enter the 16-digit control number
included on your Proxy Card. The virtual Meeting allows stockholders to vote and to submit questions. We will respond to as many
properly submitted questions during the relevant portion of the Meeting agenda as time allows. |
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To
vote using the Proxy Card, simply complete, date and sign the Proxy Card and return it promptly in the envelope provided. No postage
is necessary if mailed in the United States. If you return your signed Proxy Card to us before the Meeting, we will vote your shares
as you direct. |
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To
vote through the Internet, go to http://www.isunenergy.com and follow the instructions provided on the website. In order to
cast your vote, you will be asked to provide the control number from the Proxy Card that was mailed to you. Internet voting is available
24 hours a day and will be accessible until 11:59 p.m. Eastern Time on January 23, 2023. Our Internet voting procedures are designed
to authenticate stockholders by using individual control numbers, which are located on the Proxy Card. |
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To
vote by phone, call 1-800-690-6903 from any touch-tone telephone and follow the instructions. In order to cast your vote, you will
be asked to provide the control number from the Proxy Card that was mailed to you. Telephonic voting is available 24 hours a day
and will be accessible until 11:59 p.m. Eastern Time on January 23, 2023. Our telephonic voting procedures are designed to authenticate
stockholders by using individual control numbers, which are located on the Proxy Card. |
Beneficial
Owner: Shares Registered in the Name of a Bank, Brokerage Firm or other Nominee/Agent
If
you hold your shares in “street name” and thus are a beneficial owner of shares registered in the name of your bank, brokerage
firm or other nominee/agent, you must vote your shares as provided in instructions on how to vote your shares by your bank, brokerage
firm or other nominee/agent. Your bank, brokerage firm or other nominee/agent has enclosed or otherwise provided a voting instruction
card for you to use in directing the bank, brokerage firm or nominee/agent how to vote your shares. Check the voting form used by that
organization to see if it offers internet or telephone voting.
If
you are the beneficial owner of Shares registered in the name of a bank, brokerage firm or other nominee/agent, in order to vote virtually
at the Meeting, you must first obtain a valid proxy from your bank, brokerage firm or other nominee/agent. Follow the instructions from
your bank, brokerage firm or other nominee/agent included with these proxy materials, or contact your bank, brokerage firm or other nominee/agent
to request a proxy form.
How
many votes are required to approve each Proposal, and what is the effect of withholding my vote or abstaining, or a broker non-vote?
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Proposal
1, to approve, for the purposes of Nasdaq Listing Rule 5635, the issuance of shares of the Company’s Common Stock upon conversion
of the Senior Secured Convertible Notes issued by the Company on November 4, 2022. With respect to Proposal 1, you may vote “FOR,”
“AGAINST,” or “ABSTAIN.” Adoption of this proposal requires the affirmative vote of a majority of the shares
present in person or represented by proxy at the Meeting. Abstentions will have the same effect as negative votes. Broker non-votes
are counted towards a quorum, but are not counted for any purpose in determining whether this matter has been approved. |
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Proposal
2, to approve the adjournment of the Special Meeting, if necessary, to solicit additional proxies in the event that there are not
sufficient votes at the time of the Special Meeting to approve the other proposal. With respect to Proposal 2, you may vote “FOR,”
“AGAINST,” or “ABSTAIN.” Adoption of this proposal requires the affirmative vote of a majority of the shares
present in person or represented by proxy at the Meeting. Abstentions will have the same effect as negative votes. Broker non-votes
are counted towards a quorum, but are not counted for any purpose in determining whether this matter has been approved. |
Does
my bank, brokerage firm or other nominee have discretionary power to vote on the Proposals?
If
you hold your shares in street name and do not provide voting instructions to your bank, brokerage firm or other nominee/agent, it may
still be able to vote your shares with respect to certain “discretionary” (or routine) items, but it will not be allowed
to vote your shares with respect to certain “non-discretionary” items. In the case of non-discretionary items for which no
instructions are received, the shares will be treated as “broker non-votes.” Shares that constitute broker non-votes will
be counted as present at the meeting for the purpose of determining a quorum but will not be entitled to vote on the proposal(s) in question.
For
Proposals 1 and 2, if you ABSTAIN from voting on a proposal, your abstention has the same effect as a vote AGAINST that Proposal.
Proposal
1. to approve, for the purposes of Nasdaq Listing Rule 5635, the issuance of shares of the Company’s Common Stock upon conversion
of the Senior Secured Convertible Notes issued by the Company on November 4, 2022. With respect to Proposal 1, you may vote “FOR,”
“AGAINST” or “ABSTAIN.” Adoption of this proposal requires the affirmative vote of the holders representing a
majority of the shares present in person or represented by proxy at the Meeting. If you “ABSTAIN” from voting with respect
to Proposal 1, your vote will have the same effect as a vote “AGAINST” the proposal. Broker non-votes will have the same
effect as a vote “AGAINST” the proposal. Your bank, brokerage firm or other nominee/agent does not have discretionary authority
to vote shares for Proposal 1.
Proposal
2. to approve the adjournment of the Special Meeting, if necessary, to solicit additional proxies in the event that there are not sufficient
votes at the time of the Special Meeting to approve the other proposal. With respect to Proposal 2, you may vote “FOR,” “AGAINST”
or “ABSTAIN.” Adoption of this proposal requires the affirmative vote of the holders representing a majority of the shares
present in person or represented by proxy at the Meeting. If you “ABSTAIN” from voting with respect to Proposal 2, your vote
will have the same effect as a vote “AGAINST” the proposal. Broker non-votes will have the same effect as a vote “AGAINST”
the proposal. Your bank, brokerage firm or other nominee/agent does not have discretionary authority to vote shares for Proposal 2.
What
happens if I do not give specific voting instructions?
If
you are a stockholder of record and you indicate when voting that you wish to vote as recommended by the Board, or if you sign and return
a Proxy Card without giving specific voting instructions, then the proxy holders will vote your shares as recommended by the Board on
all matters presented in this Proxy Statement, and as the proxy holders may determine in their discretion with respect to any other matters
properly presented for a vote at the virtual Meeting.
If
you are a beneficial owner of shares held in street name and do not provide the bank, brokerage firm or other nominee/agent that holds
your shares with specific voting instructions, the bank, brokerage firm or other nominee/agent may generally vote in its discretion on
“discretionary” matters. However, if the bank, brokerage firm or other nominee/agent that holds your shares does not receive
instructions from you on how to vote your shares on a “non-discretionary” matter, it will be unable to vote your shares on
that matter. When this occurs, it is generally referred to as a “broker non-vote.”
Proposals
1 and 2 are considered as “non-discretionary’’ matters.
Can
I change my vote after submitting my proxy, voting via the Internet or by telephone?
Yes.
You can revoke your proxy at any time before the final vote at the Meeting. If you are a stockholder of record, you may revoke your proxy
in any one of four ways:
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You
may submit another properly completed Proxy Card with a later date; |
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You
may vote again by Internet or telephone at a later time (prior to the deadline for Internet or telephone voting); |
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You
may send a written notice that you are revoking your proxy to: iSun, Inc., 400 Avenue, D, Suite 10, Williston, VT, 05495 |
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You
may attend the virtual Meeting and vote virtually. Simply attending the virtual Meeting will not, by itself, revoke your proxy. |
If
you hold your shares in street name, contact your bank, brokerage firm or other nominee/agent regarding how to revoke your proxy and
change your vote. Your most current Internet proxy, telephone proxy or proxy card will be the one that is counted at the Meeting. If
you send a written notice of revocation, please make sure to do so with enough time for it to arrive by mail prior to the Meeting.
How
can I find out the results of the voting at the virtual Meeting?
Preliminary
voting results will be announced at the virtual Meeting. Final voting results will be published in our Current Report on Form 8-K within
four business days after the Meeting.
What
does it mean if I receive more than one Proxy Card?
If
you receive more than one Proxy Card, your shares are registered in more than one name or are registered in different accounts. Please
complete, date, sign and return each Proxy Card, or vote your shares via the Internet or by telephone for each Proxy Card you received
to ensure that all your shares are voted.
Who
is paying for this proxy solicitation?
The
Company is paying the costs of the solicitation of proxies. In addition to mailed proxy materials, our directors, officers and employees
may also solicit proxies in person, by telephone, or by other means of communication. We will not pay our directors, officers and employees
any additional compensation for soliciting proxies. We may reimburse brokerage firms, banks and other agents for the cost of forwarding
proxy materials to beneficial owners.
PROPOSAL
1:
TO
APPROVE, FOR THE PURPOSES OF NASDAQ LISTING RULE 5635, THE ISSUANCE OF SHARES OF THE COMPANY’S COMMON STOCK UNDER THE SENIOR SECURED
CONVERTIBLE NOTES ISSUED BY THE COMPANY ON NOVEMBER 4, 2022
General
On
November 4, 2022, the Company entered into a Securities Purchase Agreement (the “SPA”) with Anson Investments Master Fund
LP and Anson East Master Fund LP (together the “Investors”) and, pursuant thereto, the Company simultaneously consummated
the sale to the Investors of Senior Convertible Notes with an aggregate initial principal amount of $12,500,000 (the “Convertible
Notes”) in a private placement.
Pursuant
to Nasdaq Rule 5635, stockholder approval is required prior to the issuance of securities in a transaction, other than a public offering,
involving the sale, issuance or potential issuance by the Company of Common Stock (or securities convertible into or exercisable for
Common Stock), which equals 20% or more of the Common Stock or 20% or more of the voting power outstanding before the issuance, at a
price less than the lower of: (i) the closing price immediately preceding the signing of the binding agreement, or (ii) the average closing
price of the Common Stock for the five trading days immediately preceding the signing of the binding agreement for the transaction.
In
light of this rule, the Convertible Notes provide that, unless the Company obtains the approval of its stockholders as required by Nasdaq,
the Company is prohibited from issuing any shares of Common Stock pursuant to the terms of the Convertible Notes, if the issuance of
such shares of Common Stock pursuant to the Convertible Notes would exceed 19.99% of the Company’s outstanding shares of Common
Stock as of November 4, 2022, or if such issuance would otherwise exceed the aggregate number of shares of Common Stock which the Company
may issue without breaching its obligations under the rules and regulations of Nasdaq. Furthermore, the Company agreed to hold a stockholder
meeting to approve resolutions authorizing the issuance of shares of the Company’s Common Stock under the Convertible Notes for
the purposes of compliance with the stockholder approval rules of Nasdaq.
The
stockholders of the Company are being asked to approve the issuance of the Company’s Common Stock issuable upon conversion of the
Convertible Notes for purposes of Nasdaq Listing Rule 5635. Our Board of Directors believes that the transaction contemplated by the
SPA and Convertible Notes is in the best interest of the stockholders because it will enable us to restructure our debt and thereby improve
our liquidity and financial flexibility to better position the Company for growth.
The
SPA and Convertible Notes
On
November 4, 2022, the Company entered into and consummated the initial closing (the “Closing”) of the transactions contemplated
by the SPA.
At
the Closing, the Company issued and sold to the Investors the Convertible Notes in the aggregate original principal amount of $12,500,000.
The SPA provided for a six percent (6%) original issue discount resulting in gross proceeds to the Company of $11,750,000. Upon (i) the
effectiveness of a Registration Statement covering the Registrable Securities (defined below), (ii) the Stockholder Approval (defined
below), (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 Convertible Note
for an aggregate principal amount of $12,500,000 for both Notes having identical terms and conditions as the first Convertible Notes,
including a six percent (6%) original issue discount, for an aggregate principal amount of $25,000,000 in Convertible Notes that may
be issued and sold pursuant to the SPA. 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 Convertible Notes may not be prepaid by the Company, other than as specifically permitted by the Convertible
Notes.
The
Convertible Notes rank senior to all outstanding and future indebtedness of the Company and its Subsidiaries (as defined in the SPA),
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 SPA).
Also
at the Closing, 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 (extended by the Company and the Investors to December 5, 2022) 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 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 Convertible 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.
Pursuant
to the SPA, the Company agreed to seek the approval of its stockholders for the issuance of all shares of Common Stock issuable upon
conversion of the Notes, in compliance with Nasdaq rules (the “Stockholder Approval”). In connection with such agreement,
the Company entered into Voting Agreements (the “Voting Agreements”) with each of Thomas Berry, John P. Comeau, Charles B.
Curtis, Jr., James Moore, Frederick A. Myrick, Jr., Jeffrey Peck, and Veroma, LLC (each, a “Stockholder”). Pursuant to the
Voting Agreements, each Stockholder has agreed, with respect to all of the voting securities of the Company that such Stockholder beneficially
owns as of the date thereof or thereafter, to vote in favor of the Stockholder Approval, and has agreed to lock up their shares, subject
to certain exclusions, until the record date of a Special Meeting or Annual Meeting at which the Company will seek shareholder approval
of the registration of the Registrable Securities as set out in the SPA.
The
foregoing summaries provide only a brief description of the Convertible Notes, the SPA, the Security Agreement, Trademark Security Agreement,
the Guaranty, the Registration Rights Agreement and the Voting Agreements. The summaries do not purport to be complete and are qualified
in their entireties by the full text of such documents, copies of which are attached as Exhibits 4.1, 10.1, 10.2, 10.3, 10.4, 10.5 and
10.6, respectively, to the Current Report on Form 8-K filed with the SEC on November 8, 2022, and incorporated herein by reference.
Reasons
for the Transaction and Effect on Current Shareholders
The
Board has determined that the ability to issue securities pursuant to the Convertible Notes is in the best interests of the Company and
its stockholders. The issuance of securities pursuant to the Convertible Notes will not affect the rights of the holders of outstanding
Common Stock, but such issuances will have a dilutive effect on the existing shareholders, including the voting power and economic rights
of the existing shareholders.
The
Convertible Notes provide that the holder is prohibited from converting the note to the extent the holder would beneficially own more
than 4.99% (or 9.99%, if the holder elects the higher threshold) of the Company’s outstanding shares of Common Stock after such
conversion or payment. Unlike Nasdaq Rule 5635 and the corresponding provisions of the Convertible Notes, which limit the aggregate number
of shares the Company may issue to the holder of the each Convertible Note, this beneficial ownership limitation limits the number of
shares the holder may beneficially own at any one time. Consequently, the number of shares the holder may beneficially own in compliance
with the beneficial ownership limitation may increase over time as the number of outstanding shares of Common Stock increases over time.
In addition, the holder may sell some or all of the shares it receives under the Convertible Note, permitting it to acquire additional
shares in compliance with the beneficial ownership limitation. The Company is not seeking shareholder approval to lift such ownership
limitation.
Number
of Shares Potentially Issuable
As
of December 12, 2022 14,712,701 shares of our Common Stock were issued and outstanding. The following table shows the pro forma
impact of the conversion of the Convertible Notes at the Conversion Price on the ownership of our Common Stock as of December 12,
2022:
| | |
Before Note Conversions | | |
Pro Forma for the Note Conversions | |
| | |
No. of Shares | | |
Percentage of Common | | |
No. of Shares | | |
Percentage of Common | |
| Existing Holders of Common Stock | |
| 14,712,701 | | |
| 100 | % | |
| 14,712,701 | | |
| 73.6 | % |
| Investors | |
| 0 | | |
| 0 | | |
| 5,286,654 | | |
| 26.4 | % |
| Total | |
| 14,712,701 | | |
| 100 | % | |
| 19,999,355 | | |
| 100 | % |
Necessity
of Stockholder Approval
As
a result of being listed for trading on Nasdaq, issuances of the Company’s Common Stock are subject to the Nasdaq Listing Rules,
including Nasdaq Listing Rule 5635, which requires stockholder approval in connection with a transaction other than a public offering
involving the sale or issuance by the issuer of Common Stock (or securities convertible into Common Stock) equal to 20% or more of the
Common Stock or 20% or more of the voting power outstanding before the issuance for a price that is less than the greater of book or
market value of the stock on the date we enter into a binding agreement for the issuance of such securities. Accordingly, the Convertible
Notes may not be converted into in excess of 2,927,827 shares of our Common Stock, which represents approximately 19.9% of the
Common Stock outstanding immediately prior to the issuance of the Convertible Notes. As of December 12, 2022, the conversion of
$12,500,000 principal amount of the Convertible Notes at the Conversion Price would result in the issuance of 4,699,249 shares of Common
Stock, which is more than 19.9% of our Common Stock outstanding immediately before the closing of the Acquisition Transaction and the
issuance of the Convertible Notes at a discount to the book value of our Common Stock on the date of the Convertible Notes.
Accordingly,
we are requesting in this Proposal 1 that our stockholders approve, in accordance with Nasdaq Listing Rule 5635, the issuance of shares
of Common Stock exceeding 19.9% of the number of shares outstanding on December 12, 2022 or 5,286,654 shares, upon the Note Conversion.
Consequences
of Failure to Obtain Stockholder Approval
If
this stockholder approval is not obtained and we are unable to consummate the Note Conversions, the Company will be required to
seek additional capital to repay the Convertible Notes in cash, which may include equity issuances, assets sales, alternative
debt for equity conversions or other restructuring transactions, which may not be on commercially reasonable terms and may negatively
impact stockholders at that time. If the Company elects to seek additional capital with the issuance of new shares, it is also likely
that the Company may again need to seek stockholder approval at a future special or annual meeting of stockholders for the issuance of
those shares, may need to seek alternative means to finance the payment, or may take such other actions as the Board deems advisable
and in the best interests of the Company and its stockholders at that time.
The
information set forth in this Proposal 1, including the description of certain terms and provisions of the Convertible Notes, is qualified
in its entirety by reference to the actual terms of the agreements entered into in connection with the Transaction (including, but not
limited to, the SPA and the Convertible Notes), which are included as exhibits to our Current Report on Form 8-K filed with the SEC on
November 8, 2022.
Required
Vote
The
affirmative vote of the holders representing a majority of the outstanding shares of Common Stock present at the Meeting is required
to approve, for the purposes of Nasdaq Listing Rule 5635, the issuance of shares of the Company’s Common Stock under the Senior
Secured Convertible Notes issued by the Company on November 4, 2022.
RECOMMENDATION
OF THE BOARD FOR PROPOSAL NO. 1:
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR STOCKHOLDERS VOTE “FOR” THE APPROVAL OF THE ISSUANCE OF SHARES OF THE
COMPANY’S COMMON STOCK UNDER THE SENIOR SECURED CONVERTIBLE NOTES ISSUED BY THE COMPANY ON NOVEMBER 4, 2022.
PROPOSAL
2:
ADJOURNMENT
PROPOSAL
At
the Special Meeting, if necessary, stockholders will vote on the Adjournment Proposal. If the Adjournment Proposal is adopted, the Board
will have the discretion to adjourn the Special Meeting to a later date or dates to permit further solicitation of proxies in the event
that there are not sufficient votes at the time of the Special Meeting to approve the other proposals. It is possible for the Company
to obtain sufficient votes to approve the Adjournment Proposal but not receive sufficient votes to approve the other proposals. In such
a situation, the Company could adjourn the meeting for any number of days or hours as permitted under applicable law and attempt to solicit
additional votes in favor of such other proposals.
In
addition to an adjournment of the Special Meeting upon approval of the Adjournment Proposal, if a quorum is not present at the Special
Meeting, the Company’s bylaws allow the Special Meeting to be adjourned for the purpose of obtaining a quorum. Any such adjournment
may be made without notice, other than the announcement made at the Special Meeting, by the affirmative vote of a majority of the shares
of Common Stock present in person or by proxy and entitled to vote at the Special Meeting. The Board also is empowered under Delaware
law to postpone the meeting at any time prior to the meeting being called to order. In such event, the Company would issue a press release
and take such other steps as it believes are necessary and practical in the circumstances to inform its stockholders of the postponement.
If
the stockholders approve the Adjournment Proposal, and the Special Meeting is adjourned, the Company expects to use the additional time
to solicit additional proxies in favor of the other proposals. Among other things, approval of the Adjournment Proposal could mean that,
even if a majority of the Company’s Common Stock has been voted against the other proposals, the Company could adjourn the Special
Meeting without a vote on the other proposals, and seek to convince the holders of those shares to change their votes.
The
Adjournment Proposal will only be presented at the Special Meeting if there are not sufficient votes represented in person or by proxy
for the other proposals. If the Adjournment Proposal is presented at the Special Meeting and is not approved, the Company may not be
able to adjourn the Special Meeting to a later date. As a result, the Company may be prevented from obtaining ratification and/or approval
of the other matters.
Required
Vote and Recommendation
Approval
of the Adjournment Proposal requires the affirmative vote of a majority of the issued and outstanding shares of the Company’s Common
Stock, represented in person or by proxy at the meeting and entitled to vote thereon.
RECOMMENDATION
OF THE BOARD FOR PROPOSAL NO. 2:
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR STOCKHOLDERS VOTE “FOR” THE ADJOURNMENT PROPOSAL.
PRINCIPAL
STOCKHOLDERS OF iSUN
The
percentage ownership information shown in the table below is based upon 14,712,701 shares of Common Stock outstanding as of the Record
Date. The number of outstanding shares and the percentage ownership information shown in the table below includes shares and options
issued pursuant to the Company’s Equity Incentive Plan.
| Name and Address of Beneficial Owner(1) | |
Shares of Common
Stock | | |
Percentage Owned | |
| | |
| | |
| |
| Directors and executive officers | |
| | | |
| | |
| Jeffrey Peck | |
| 1,356,974 | (1) | |
| 9.22 | % |
| John Sullivan | |
| 58,000 | | |
| 0.39 | % |
| Frederick Myrick, Jr. | |
| 628,487 | (2) | |
| 4.27 | % |
| Andrew Matthy | |
| 3,000 | | |
| 0.02 | % |
| Stewart Martin | |
| 10,500 | | |
| 0.07 | % |
| Michael d’Amato | |
| 227,316 | (3) | |
| 1.55 | % |
| Claudia Meer | |
| 7,250 | | |
| 0.05 | % |
| All officers and directors as a group (6 persons) | |
| 2,291,527 | | |
| 15.58 | % |
| (1) |
Pursuant
to a Voting Agreement dated June 20, 2019, between iSun and Mr. Peck and certain other parties, Mr. Peck has sole voting power over
an aggregate of 867,976 shares held by the following iSun stockholders including 275,000 shares of Common Stock held
by Mooers Partners, LLC, 275,000 shares of Common Stock held by Branton Partners, LLC, 227,316 shares of Common Stock
held by Veroma, LLC, and 90,660 shares of Common Stock held by Corundum, AB. Pursuant to Irrevocable Proxies, Mr. Peck has
sole voting power over an aggregate of 298,000 shares held by the following iSun stockholders including 291,500 shares
held by Sassoon M. Peress, 2,000 shares held by Dan Cohen, 3,000 shares held by Emma Peress, and 1,500 shares held by Shoshanna Zimmerman
|
| |
|
| (2) |
These shares are held by The Mykilore Trust of which
Mr. Myrick is a trustee. |
| |
|
| (3) |
These shares are held by Veroma, LLC of which Mr. d’Amato
is a managing member. |
INCORPORATION
BY REFERENCE
We
are incorporating by reference specified documents that we file with the SEC, which means that incorporated documents are considered
part of this Proxy Statement. We are disclosing important information to you by referring you to those documents and information we subsequently
file with the SEC will automatically update and supersede information contained in this Proxy Statement and in our other filings with
the SEC. This document incorporates by reference the Company’s Annual Report on Form 10-K for the year ended December 31, 2021,
filed on April 15, 2022 and amended on Form 10-K/A, filed on May 2, 2022, the Company’s quarterly report on Form 10-Q for the quarter
ended March 31, 2022, filed on May 16, 2022, the Company’s quarterly report on Form 10-Q for the quarter ended June 30, 2022, filed
on August 15, 2022, the Company’s quarterly report on Form 10-Q for the quarter ended September 30, 2022, filed on November 14,
2022, and the Company’s Current Reports on Form 8-K and 8-K/A, as applicable, as filed with the SEC on January 5, 2022; February
2, 2022; March 14, 2022; July 25, 2022; and November 8, 2022.
The
Board knows of no other matters that will be presented for consideration at the Meeting, but if other matters properly come before the
Meeting, the persons named as proxies in the enclosed Proxy will vote according to their best judgment. Stockholders are requested to
date and sign the enclosed Proxy and to mail it promptly in the enclosed postage-paid envelope. If you attend the virtual Meeting, you
may revoke your Proxy at that time and vote virtually, if you wish. Otherwise your Proxy will be voted for you.
| |
By
Order of the Board of Directors |
| |
|
| |
/s/
Jeffrey Peck |
| |
Jeffrey
Peck |
| |
Chairman |
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