S-8 1 envision_s8.htm FORM S-8 REGISTRATION STATEMENT

 

As Filed with the Securities and Exchange Commission on August 27, 2020

Registration No. 333-_____

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

ENVISION SOLAR INTERNATIONAL
(Exact Name of Registrant as Specified in Its Charter)

 

Nevada 16-1342810  

(State or Other Jurisdiction

of Incorporation or Organization)

(I.R.S. Employer
Identification No.)

 
 

 

5660 Eastgate Drive

San Diego, CA

  92121
  (Address of Principal Executive Offices)   (Zip Code)
           

 

Envision Solar International, Inc.

2011 Stock Incentive Plan

(Full Title of the Plans)

 

Desmond Wheatley

Chief Executive Officer

5660 Eastgate Dr.

San Diego, California 92121

Telephone: (858) 799-4583

(Name, Address and Telephone Number of Agent For Service)

 

Copies to:

 

Jeffrey B. Pietsch

Weintraub Tobin Chediak Coleman Grodin

475 Sansome Street, #510

San Francisco, CA  94111

Telephone:  (415) 772-9611

Facsimile:  (916) 446-1611

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   o   Accelerated filer   o
       
Non-accelerated filer   x   Smaller reporting company   x
        Emerging growth company   o

 

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 the Securities Act. ☐

 

CALCULATION OF REGISTRATION FEE

Title of Securities to be Registered Amount
to be
Registered (1)

Proposed
Maximum Offering
Price Per Share

Proposed Maximum
Aggregate Offering
Price

Amount of
Registration
Fee
Common Stock to be issued under the registrant’s 2011 Stock Incentive Plan

 

630,000 (2)

 

$11.24 (3)

 

$7,081,200

 

$919.14

 

(1)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (“Securities Act”), this registration statement also covers any additional shares of the registrant’s common stock that may become issuable under the 2011 Stock Incentive Plan (“2011 Plan”) by reason of any stock split, stock dividend, recapitalization or similar transaction.

 

(2)Represents additional shares reserved for issuance under the 2011 Plan.

 

(3)Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and (h) promulgated under the Securities Act, based on the average of the high and low prices per share of the common stock of the registrant on August 25, 2020, as reported on The NASDAQ Capital Market.

 

 

   

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

 

The information called for by Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the “Registration Statement”) and has been or will be sent or given to participating service providers in accordance with Rule 428 of the Securities Act of 1933, as amended (the “Securities Act”), and the instructions to Form S-8. In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

ITEM 3.INFORMATION INCORPORATED BY REFERENCE.

 

Registrant hereby incorporates by reference into this registration statement the following documents and information previously filed with the Commission:

 

  Our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March 30, 2020;

 

  Our Annual Report on Form 10-K/A for the fiscal year ended December 31, 2019, filed with the SEC on May 5, 2020;

 

  Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2020 and June 30, 2020, filed with the SEC on May 14, 2020 and August 13, 2020;
     
  Our Current Reports on Form 8-K filed with the SEC on June 19, 2020 and July 6, 2020;  and
     
  The description of our common stock contained in our Form 8-A filed on April 12, 2019.

 

Additionally, all reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this registration statement.

 

Any statement incorporated herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document that is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

 

ITEM 4.DESCRIPTION OF SECURITIES.

 

Not applicable.

 

ITEM 5.INTERESTS OF NAMED EXPERTS AND COUNSEL.

 

No expert or counsel named in this prospectus as having prepared or certified any part of this prospectus or having given an opinion upon the validity of the securities being registered or upon other legal matters in connection with the registration or offering of the securities was employed on a contingency basis, or had, or is to receive, in connection with the offering, a substantial interest, direct or indirect, in the registrant or any of its parents or subsidiaries. Nor was any such person connected with the registrant or any of its parents or subsidiaries as a promoter, managing or principal underwriter, voting trustee, director, officer, or employee.

 

 

 

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ITEM 6.INDEMNIFICATION OF DIRECTORS AND OFFICERS.

 

Our Articles of Incorporation and Bylaws provide that we may indemnify our officers, directors, employees or agents or former officers, directors, employees or agents, against expenses actually and necessarily incurred by them, in connection with the defense of any legal proceeding or threatened legal proceeding, except as to matters in which such persons shall be determined to not have acted in good faith and in our best interest.  This means that if indemnity is determined by the Board of Directors to be appropriate in any case, we, and not the individual, might bear the cost of any suit that is filed by a shareholder against the individual officer, director or employee unless the court determines that the individual acted in bad faith. These provisions are sufficiently broad to permit the indemnification of such persons in certain circumstances against liabilities arising under the Securities Act.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors and officers, and to persons controlling our company pursuant to the foregoing provisions, we have been informed that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

ITEM 7.EXEMPTION FROM REGISTRATION CLAIMED.

 

Not Applicable.

 

ITEM 8.EXHIBITS.

 

The Exhibit Index filed herewith and appearing immediately after the signature page to this Registration Statement is incorporated by reference in this Item 8.

 

ITEM 9.UNDERTAKINGS.

 

A. The undersigned Registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

 

(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;

providedhowever, that paragraphs (A)(1)(i) and (A)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic 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 this 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; and

 

(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.

 

 

 

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B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference into this 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 Commission 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 hereby, 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.

 

 

 

 

 

 

 

 

 

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on August 27, 2020.

 

  ENVISION SOLAR INTERNATIONAL, INC.  
       
  By: /s/ Desmond Wheatley  
    Desmond Wheatley  
    President and Chief Executive Officer  
       

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Desmond Wheatley, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming that each of said attorneys-in-fact and agents or any of them, or his or their 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.

 

Dated:  August 27, 2020 By: /s/ Desmond Wheatley
    Desmond Wheatley, President, Chief Executive Officer and Director
    (Principal Executive Officer)
     
Dated:  August 27, 2020 By: /s/ Katherine H. McDermott
    Katherine H. McDermott, Chief Financial Officer
    (Principal Financial and Accounting Officer)
     
Dated:  August 27, 2020 By: /s/ Robert C. Schweitzer
    Robert C. Schweitzer, Director
     
Dated:  August 27, 2020 By: /s/ Peter Davidson
    Peter Davidson, Director
     
Dated:  August 27, 2020 By: /s/ Anthony Posawatz
    Anthony Posawatz, Director
     

 

 

 

 

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EXHIBIT INDEX

 

        Incorporated by Reference    

Exhibit

Number

  Exhibit Description   Form   File No.   Exhibit  

Filing

Date

 

Filed

Herewith

                         
                         
4.1   Articles of Incorporation   SB-2    333-147104   3.1    11/2/2007    
                         
4.2   Amendment to Articles of Incorporation dated December 23, 2016   S-1/A   333-226040   3.1.2   4/4/2019    
                         
4.3   Certificate of Change to Articles of Incorporation dated April 11, 2019   8-K   001-38868   3.1   4/18/2019    
                         
4.4   Bylaws of Registrant   SB-2    333-147104   3.2    11/2/2007    
                         
4.5   Amendment to Bylaws   8-K      000-53204   10.2    7/16/2014    
                         
                         
4.6  

2011 Stock Incentive Plan of Envision Solar International, Inc., dated as of August 10, 2011

 

  10-Q   001-38868   4.1   8/15/2011    
                         
4.7   Form of Restricted Stock Agreement   10-Q   001-38868   10.3   11/14/2019    
                         
4.8   Form of Stock Option Agreement   10-Q   001-38868   10.4   11/14/2019    
                         
                         
5.1   Opinion of Weintraub Tobin Chediak Coleman Grodin Law Corporation                   X
                         
23.1   Consent of Weintraub Tobin Chediak Coleman Grodin Law Corporation (included in Exhibit 5.1).                   X
                         
23.2   Consent of Salberg & Company, P.A., independent registered public accounting firm                   X
                         

 

 

 

 

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