Payment of Filing Fee (Check the appropriate box): ☒ | | | No fee required.required | ☐ | | | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. | | | | 1)(1)
| | | Title of each class of securities to which transaction applies: N/A | | | | | | | | | | | 2)(2)
| | | Aggregate number of securities to which transaction applies: N/A | | | | | | | | | | | 3)(3)
| | | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set(Set forth the amount on which the filing fee is calculated and state how it was determined): N/A | | | | | | | | | | | 4)(4)
| | | Proposed maximum aggregate value of transaction: N/A | | | | | | | | | | | 5)(5)
| | | Total fee paid: | | | | | | | | ☐ | | | Fee paid previously with preliminary materials. | ☐ | | | Check 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. | | | | 1)(1)
| | | Amount Previously Paid:paid: | | | | | | | N/A
| | | | 2)(2)
| | | Form, Schedule or Registration Statement No.: | | | | | | | N/A
| | | | 3)(3)
| | | Filing Party: | | | | | | | N/A
| | | | 4)(4)
| | | Date Filed:Filed | | | | | | | N/A
|
iSUN,Explanatory Note
This revised Preliminary Proxy on Schedule 14A supersedes in its entirety the Prelimary Proxy filed by iSun, Inc. with the Securities and Exchange Commission on April 13, 2021. iSun, Inc.
400 Avenue D, Suite 10
Williston, VermontVT 05495 NOTICE OF
Dear Stockholder:
SPECIAL MEETING OF STOCKHOLDERS
To be held at 2:00 P.M Eastern Time on February 25, 2021
Dear iSun, Inc. Stockholders:
Notice is hereby given thatYou are cordially invited to attend the 2020 Annual Meeting of the Stockholders (the “Meeting”) of iSun, Inc., a Delaware corporation (“iSun”(the “Company”), formerly known as The Peck Company Holdings, Inc., will hold a virtual Special. 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 2020 Annual Meeting of its stockholders (the “iSun Special Meeting”),Stockholders will be a completely “virtual meeting.” The Meeting will be held exclusively online via live audio-only webcast on February 25,Friday, May 11, 2021 at 2:1:00 P.M. Eastern Time. A Proxy Card andp.m. (Eastern Time). The Company will be holding its 2021 Annual Meeting as a Proxy Statementvirtual meeting via live audio-only webcast immediately after the conclusion of the 2020 Annual Meeting of Stockholders. All stockholders of the Company who are enclosed.receiving these materials will simultaneously be receiving materials with respect to the 2021 Annual Meeting of Stockholders.
There will not be a physical meeting location. The iSun Special Meeting can be accessed by visiting https://www.virtualshareholdermeeting.com/ISUN2021SM,ISUN2020AM, where you will be able to attend the iSun Special 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 1:12:45 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 (i) to elect two (2) directors to serve until the 2023 Annual Meeting of Stockholders and until each of their successors is duly elected and qualified; (ii) to ratify the selection of Marcum LLP as our independent registered public accounting firm for the year ended December 31, 2019; (iii) to approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to reduce the percentage of outstanding shares required to approve an Amendment to the Certificate of Incorporation from 66.667% to a simple majority, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation; (iv) To approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to allow for any action required or permitted to be taken by the stockholders of the Company to be effected by written consent, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation; and (v) to transact such other business as may properly come before the Meeting or any adjournment thereof. The record date for the Meeting is April 1, 2021. 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. | | | By Order of the Board of Directors | | | | | | | | /s/ Jeffrey Peck | | | | Jeffrey Peck | | | | Chairman |
iSun, SpecialInc.
400 Avenue D, Suite 10
Williston, VT 05495 NOTICE OF 2020 VIRTUAL ANNUAL MEETING OF STOCKHOLDERS To Be Held On Tuesday, May 11, 2021 To the Stockholders of iSun, Inc.: NOTICE IS HEREBY GIVEN that the 2020 Annual 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 1:00 p.m. Eastern Time on Tuesday, May 11, 2021, 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/ISUN2020AM, 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 12:45 P.M. Eastern Time. Please note that you will not be able to attend the Meeting in person. We are holding the iSun Special Meeting for the purpose of considering and acting upontaking action on the following proposal:proposals: 1.
| The iSun, Inc. 2020 Equity Incentive Plan,To elect two (2) directors to serve until the 2023 Annual Meeting of Stockholders and until each of their successors is duly elected and qualified;
|
2.
| To ratify the appointment of Marcum LLP as amended. our independent public accounting firm for the fiscal year ended December 31, 2019; |
3.
| To vote on a proposalapprove an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to reduce the percentage of outstanding shares required to approve an Amendment to the iSun, Inc. 2020 Equity Incentive Plan,Certificate of Incorporation from 66.667% to a simple majority, as amended (the “Equity Incentive Plan”) (the “iSun 2020 Equity Incentive Plan Proposal”). A copyset forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation; |
4.
| To approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to allow for any action required or permitted to be taken by the stockholders of the Equity Incentive Plan is attached heretoCompany to be effected by written consent, as Annex A.set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation; and |
5.
| To transact such other business as may be properly brought before the Meeting and any adjournments thereof. |
And such otherThese matters as may properly come beforeare more fully described in the iSun Special Meeting, or any adjournments thereof. The Board of Directors is not aware of any other business to come before the Special Meeting.Proxy Statement accompanying this Notice.
The iSunOur Board of Directors (the “iSun Board”“Board”) has fixed the close of business on January 7,April 1, 2021 as the Record Date for the iSun Special Meetingrecord date (the “Record Date”). Only iSun for the determination of stockholders of record as of the Record Date are entitled to receive notice of and to vote at the iSun Special Meeting or any adjournment or postponement thereof.
Approval A list of the iSun 2020 Equity Incentive Plan Proposal requires the affirmativestockholders eligible to vote of the holders of a majority of the voting power of the shares of iSun Common Stock present or represented by proxy at the iSun Special Meeting and entitledwill be available for review during our regular business hours at our principal offices in Williston, Vermont for the 10 days prior to vote on the iSun 2020 Equity Incentive Plan Proposal.
The iSun Board unanimously approved and declared advisableMeeting for review for any purposes related to the iSun 2020 Equity Incentive Plan Proposal and unanimously recommends that iSun stockholders vote:
“FOR” the iSun 2020 Equity Incentive Plan ProposalMeeting.
THE ISUN SPECIALiSUN 2020 ANNUAL MEETING CAN BE ACCESSED BY VISITING HTTPS://WWW.VIRTUALSHAREHOLDERMEETING.COM/ISUN2021SM,ISUN2020AM, WHERE YOU WILL BE ABLE TO LISTEN TO THE ISUN SPECIAL MEETING LIVE, HAVE AN OPPORTUNITY TO SUBMIT QUESTIONS AND VOTE ONLINE. WHETHER OR NOT YOU EXPECT TO ATTEND THE ISUN SPECIAL MEETING, TO ENSURE YOUR REPRESENTATION AT THE ISUN SPECIAL 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 ISUNiSUN PROXY CARD, (2) CALLING THE TOLL-FREE NUMBER LISTED ON THE ENCLOSED ISUNiSUN PROXY CARD OR (3) SUBMITTING YOUR ENCLOSED ISUNiSUN PROXY CARD BY MAIL BY USING THE PROVIDED SELF-ADDRESSED, STAMPED ENVELOPE. Submitting a proxy will not prevent you from attending the iSun Special Meeting by means of remote communication and voting at the iSun Special 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 iSun Special Meeting may vote virtually at the iSun Special Meeting, thereby revoking any previous proxy. In addition, a proxy may also be revoked in writing before the iSun Special Meeting in the manner described in the accompanying Proxy Statement. If your shares are held in the name of a bank, brokerbrokerage firm or other nominee,nominee/agent, please follow the instructions on the voting instruction form furnished by your bank, brokerbrokerage firm or other nominee.nominee/agent. Williston, Vermont
Dated: April , 2021 If you own shares in street name through an account with a bank, broker or other nominee, please follow the voting instructions provided to you by that nominee in order to vote your shares.
The accompanying Proxy Statement provides a detailed description of the iSun 2020 Equity Incentive Plan to be considered at the iSun Special Meeting. We urge you to carefully read this Proxy Statement, including Annex A in its entirety. If you have any questions concerning the proposal in this Notice, or the accompanying Proxy Statement, would like additional copies or need help voting your shares of iSun Common Stock, please contact iSun’s Corporate Secretary, Mr. Michael d’Amato at mdamato@isunenergy.com:
| | | By Order of the Board of Directors
February 2, 2021
| | | | | | | | /s/ Michael D’AmatoJeffrey Peck | | | | Corporate SecretaryJeffrey Peck
| | | | Chairman |
iSun, Inc.
400 Avenue D, Suite 10
Williston, VT 05495 PROXY STATEMENT
THE iSUN
FOR 2020 VIRTUAL SPECIALANNUAL MEETING OF STOCKHOLDERS This Proxy Statement is furnished to iSun stockholders as part of ain connection with the solicitation of proxies by the Board of Directors (the “Board”) of iSun, Board for use atInc. (“iSun,” the iSun Special“Company,” “we,” “our,” or “us”) in connection with the virtual 2020 Annual Meeting to be held at the time specified below and at any properly convened meeting following an adjournment or postponement thereof. This Proxy Statement provides iSun stockholders with information they need to know to be able to vote or instruct their vote to be cast at the iSun Special Meeting. Date, Time and Placeof Stockholders of the Virtual Special Meeting
The iSun Special Meeting willCompany to be held exclusively online via live audio-only webcast on February 25,Tuesday, May 11, 2021 at 2:1:00 P.M,p.m. Eastern Time. The iSun SpecialTime (the “Meeting”).
GENERAL INFORMATION ABOUT SOLICITATION VOTING AND ATTENDING Who Can Vote at the 2020 Virtual Annual 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 April 1, 2021 (the “Record Date”) are entitled to receive notice of, attend and vote at the 2020 virtual Annual Meeting can be accessedof Stockholders. You may attend the Meeting by visiting https://www.virtualshareholdermeeting.com/ISUN2021SM,ISUN2020AM, where you will be able to listen to the iSun Special Meeting live, have an opportunity to submit questions, and vote online. We encourage you to allow ample time for online check-in, which will open at 1:45 P.M. Eastern Time. Please note that you will not be able to attend the iSun Special Meeting in person. iSun intends to mail this Proxy Statement and the enclosed form of proxy to its stockholders entitled to vote at the iSun Special Meeting on or about February 1, 2021. Matters to be Considered at the iSun Special Meeting
iSun stockholders will be asked to consider and vote on the following:
1.
| The iSun 2020 Equity Incentive Plan Proposal |
History of Plan; Recommendation of the iSun Board
On October 28, 2020, the Board unanimously approved The Peck Company Holdings, Inc. 2020 Equity Incentive Plan. On January 1, 2021, the Board unanimously approved amendments to The Peck Company Holdings, Inc. 2020 Equity Incentive Plan to allocate an additional 500,000 ofyour shares of Common Stock to The Peck Company Holdings, Inc. 2020 Equity Incentive Plan. On January 19, 2021, the iSun Board unanimously approved amendments to the iSun 2020 Equity Incentive Plan,if you held such shares as amended, to change the name of The Peck Company Holdings, Inc. 2020 Equity Incentive Plan to reflect the change in the Company’s corporate name to iSun, Inc. and to change the name of the Equity Incentive Plan to the iSun, Inc. 2020 Equity Incentive Plan, as amended (the “Equity Incentive Plan”). A copy of the Equity Incentive Plan in its entirety is attached to this Proxy Statement as Annex A.
Accordingly, the iSun Board unanimously recommends that iSun stockholders vote “FOR” the iSun 2020 Equity Incentive Plan Proposal.
iSun stockholders should carefully read this Proxy Statement, including Annex A in its entirety, for more detailed information concerning the iSun 2020 Equity Incentive Plan Proposal.
Record Date; Stockholders Entitled to Vote
The iSun Board of Directors (the “iSun Board”) has fixed the close of business on January 7, 2021 as the Record Date for the iSun Special Meeting (the “Record Date”). Only iSun stockholders of record as of the Record Date are entitled to receive notice of, and to vote at, the iSun Special Meeting or any adjournment or postponement thereof.
As of the close of business on the Record Date,April 1, 2021. As of April 1, 2021, there were 5,312,8738,778,732 shares of iSunthe 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 iSun SpecialMeeting will constitute a quorum for purposes of voting on a particular matter at the Meeting. EachOnce a share is represented for any purpose at the Meeting, it is deemed present for quorum purposes for the remainder of iSun Common Stockthe 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 Second Amended and Restated Certificate of Incorporation the vote of: (i) a plurality of the votes cast will be required to elect each of the two director nominees (Proposal 1); (ii) a majority of votes cast will be required to ratify the appointment of the independent auditors for the year ended December 31, 2019 (Proposal 2); (iii) a vote of not less than 66.667% of the total voting power of all outstanding onshares of capital stock of the Record Date entitlesCompany will be required to approve an amendment to the holder thereofCompany’s Second Amended and Restated Certificate of Incorporation to onereduce the percentage of outstanding shares required to approve an Amendment to the Certificate of Incorporation from 66.667% to a simple majority as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation (Proposal 3); and (iv) a vote on each proposalof not less than 66.667% of the total voting power of all outstanding shares of capital stock of the Company will be required to approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to allow for any action required or permitted to be consideredtaken by the stockholders of the Company to be effected by written consent as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation (Proposal 4). (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 iSun Special Meeting. Your vote is important. We expect that many iSun stockholders will not attend the iSun Special Meeting, and instead will be represented by proxy. Most iSun stockholders have a choice of submitting a proxy to vote their shares via the Internet, by using a toll-free telephone number, or by returning a completed iSun Proxy Card or voting instruction form. Please check your Notice, Proxy Card or the information forwarded by your broker, bank or other holder of record, to see which options are available to you. These Internet and telephone procedures have been designed to authenticate iSun stockholders, to allow you to vote your shares, and to
confirm that your instructions have been properly recorded. The Internet and telephone facilities for iSun stockholders of record to submit proxies will close at 11:59 P.M. Eastern Time on February 24, 2021. If your shares are held through a broker, bank or other holder of record, and Internet or telephone facilities are made available to you, these facilities may close sooner than those for iSun stockholders of record.
You can revoke your proxy at any time before it is exercised by delivering a properly executed, later-dated proxy (including a proxy submitted by Internet or telephone), by delivering a written revocation beforeAttending the iSun Special Meeting or by voting at the iSun Special Meeting. Executing your proxy in advance will not limit your right to vote at the iSun Special Meeting if you decide to attend the iSun Special Meeting. However, if your shares are held in the name of a broker, bank or other holder of record, you cannot vote at the iSun Special Meeting unless you have a legal proxy, executed in your favor, from the holder of record.
All shares entitled to vote and represented by properly executed proxies received prior to the iSun Special Meeting and not revoked will be voted at the iSun Special Meeting in accordance with your instructions. If you sign and return your proxy but do not indicate how your shares should be voted on a proposal, the shares represented by your proxy will be voted as the iSun Board recommends for such proposal.
Subject to health concerns relating to COVID-19, which may require iSun to implement alternative procedures to protect the health and welfare of iSun’s employees and stockholders, a complete list of iSun stockholders entitled to vote at the iSun Special Meeting will be available for examination by any iSun stockholder in the Corporate Secretary’s Office at iSun, Inc., 400 Avenue D, Suite 10, Williston, Vermont 05945, for purposes pertaining to the iSun Special Meeting, during ordinary business hours for a period of ten days before the iSun Special Meeting, and at the iSun Special Meeting. A complete list of iSun stockholders entitled to vote at the iSun Special Meeting will also be available for inspection during the iSun Special Meeting at https://www.virtualshareholdermeeting.com/ISUN2021SM by logging in with your 16-digit control number(s).
Voting by iSun’s Directors and Executive Officers
As of the close of business on the Record Date, directors and executive officers of iSun and their affiliates owned and were entitled to vote approximately 3,315,687 shares of iSun Common Stock, or approximately 61% of the shares of iSun Common Stock outstanding on that date. The number of shares of iSun Common Stock referenced in the preceding sentence includes an aggregate of 948,495 shares of iSun Common Stock that are subject to a Voting Agreement dated June 20, 2019 pursuant to which Mr. Jeffrey Peck, CEO of iSun, Inc., has the power to vote such shares of iSun Common Stock. It is currently expected that iSun’s directors and executive officers will vote their shares of iSun Common Stock in favor of the proposal to be considered at the iSun Special Meeting although none of such directors or executive officers have entered into an agreement obligating them to do so. For information with respect to iSun Common Stock owned by directors and executive officers of iSun, please see the section entitled: “Principal Stockholders of iSun” beginning on page 9 of this Proxy Statement for additional information.Quorum
The presence at the iSun Special Meeting, virtually or represented by proxy, of the holders of a majority of the voting power of iSun Common Stock issued and outstanding and entitled to vote as of the Record Date, will constitute a quorum for the transaction of business at the iSun Special Meeting.
Abstentions will count for the purpose of determining the presence of a quorum for the transaction of business at the iSun Special Meeting.
Required Vote
The required votes to approve the iSun proposal is as follows:
The adoption of the iSun 2020 Equity Incentive Plan Proposal requires the affirmative vote of the holders of a majority of the voting power of the shares of iSun Common Stock, present or represented by proxy at the iSun Special Meeting, and entitled to vote on the iSun 2020 Equity Incentive Plan Proposal. The required vote of holders of iSun Common Stock to approve the iSun 2020 Equity Incentive Plan is based on the number of shares that are present virtually or represented by proxy at the iSun Special Meeting and entitled to vote on the proposal, not on the number of outstanding shares of iSun Common Stock. Brokers, banks and other nominees do not have discretionary authority to vote on this proposal.
Voting by Holders of Record
If you were the record holder of your shares of iSun Common Stock of the iSun Record Date, you may vote your shares of iSun Common Stock at the iSun Special Meeting via the iSun Special Meeting website. Any iSun stockholder can attend the iSun Special Meeting by visiting https://www.virtualshareholdermeeting.com/ISUN2021SM, where stockholders may listen to the iSun Special Meeting, have an opportunity to submit questions and vote during the iSun Special Meeting webcast. Additionally, you may submit your proxy authorizing the voting of your shares of iSun Common Stock at the iSun Special Meeting by mail, by telephone or via the Internet.
Voting via Proxies Submitted by the Internet or by Telephone
To submit your proxy via the Internet, go to the website specified on your iSun Proxy Card. Have your iSun Proxy Card in hand when you access the website and follow the instructions to vote your shares.
If you submit a proxy to vote your shares via the Internet or by telephone, you must do so no later than 11:59 P.M. on February 24, 2021.
Voting via Proxies Submitted by Mail
As an alternative to submitting your proxy via the Internet or by telephone, you may submit your proxy by mail.
To submit your proxy by mail, simply mark, sign and date your iSun Proxy Card and return it in the pre-paid envelope that has been provided, or in an envelope addressed to: Vote Processing, c/o Broadridge 51 Mercedes Way, Edgewood, NY 11717.
If you submit a proxy to vote your shares by mail, your iSun Proxy Card must be received no later than 11:59 P.M. on February 24, 2021.
Treatment of Abstentions; Failure to Vote
For purposes of the iSun Special Meeting, an abstention occurs when an iSun stockholder attends the iSun Special Meeting, either by attending the iSun Special Meeting or by proxy, but abstains from voting. For the iSun 2020 Equity Incentive Proposal, if an iSun stockholder present at the iSun Special Meeting abstains from voting, or responds by proxy with an “abstain” vote, it will have the same effect as a vote cast “AGAINST” such proposal. If an iSun stockholder is not present at the iSun Special Meeting and does not respond by proxy, it will have no effect on the vote count for such proposal.
Shares Held in Street Name / Broker Non-Votes
If your shares of iSun Common Stock are held in an account at a bank, broker or other nominee holder of record (i.e., in “street name”), you must provide the record holder of your shares with instructions on how to vote the shares. Please follow the voting instructions provided by the bank, broker or other nominee. Banks, brokers or other nominees who hold shares of iSun Common Stock on behalf of their customers may not give a proxy to iSun to vote those shares with respect to the iSun Share Issuance Proposal and the iSun Adjournment Proposal without specific instructions from their customers, as banks, brokers and other nominees do not have discretionary voting power on these “non-routine” matters. Under the current rules of Nasdaq, each of the proposals to be considered at the iSun Special Meeting as described in this Proxy Statement are considered non-routine. Therefore banks, brokers and other nominee holders of record do not have discretionary authority to vote on any of the proposals to be considered at the iSun Special Meeting. Broker non-votes occur when a broker or nominee is not instructed by the beneficial owner of shares to vote on a particular proposal for which the broker does not have discretionary voting power. However, because there are no “routine” matters to be voted on at the iSun Special Meeting, if a beneficial owner of shares of iSun Common Stock held in street name does not give voting instructions to the broker, bank or other nominee, then those shares will not be present or represented by proxy at the iSun Special Meeting. As a result, there will not be any broker non-votes at the iSun Special Meeting.
Attendance at the iSun Special Meeting and Voting at the iSun Special Meeting
You or your authorized proxy may attend the iSun Special Meeting if you were a registered or beneficial stockholder of iSun Common Stock as of the iSun Record Date. To participate in the iSun Special Meeting, visit https://www.virtualshareholdermeeting.com/ISUN2021SMISUN2020AM and enter the 16-digit control number included on your Proxy Card or on the instructions that accompanied your proxy materials.Card. The virtual iSun Special Meeting allows stockholders to submit questions during the iSun Special Meeting in the question box provided at https://www.virtualshareholdermeeting.com/ISUN2021SM.ISUN2020AM. We will respond to as many properly submitted questions during the relevant portion of the iSun Special Meeting agenda as time allows. If we experience technical difficulties during the iSun Special Meeting (e.g., a temporary or prolonged power outage), we will determine whether the iSun Special Meeting can be promptly reconvened (if the technical difficulty is temporary) or whether the iSun Special Meeting will need to be reconvened on a later day (if the technical difficulty is more prolonged). InIf you encounter any situation, wedifficulties accessing the Virtual Meeting during the check-in or meeting time, please call the technical support number that will promptly notify stockholders ofbe posted on the decision via press release to be hosted at www.proxyvote.com.Virtual Shareholder Meeting login page. If you are a registered stockholderShareholder 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 iSun Special Meeting virtually on the internet. Please follow the instructions on the notice or 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,nominee/agent, please follow the voting instructions provided to you by that nomineenominee/agent in order to vote your shares. RevocabilitySOLICITATION AND REVOCABILITY OF PROXIES
The enclosed proxy for the Meeting is being solicited by the Board. Stockholders of Proxiesrecord 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. Any iSunThe 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 houses 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, Proxy Statement, and 2019 Form 10-K are available for viewing, printing, and downloading at http://www.proxyvote.com. Our 2019 Form 10-K is also available under the Company—Investor Relations—Annual Reports section of our website at www.isunenergy.com and through the SEC’s EDGAR system at http://www.sec.gov. 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 April 1, 2021, the Record Date for the Meeting, will be entitled to vote at the Meeting. On April 1, 2021, there were 8,778,732 shares of Common Stock (each entitled to one vote) outstanding. What is the difference between a stockholder of record givingand a proxy hasbeneficial owner of shares held in street name? Stockholder of Record. If your shares are registered directly in your name with the powerCompany’s transfer agent, Continental Stock Transfer & Trust, you are considered the stockholder of record with respect to those shares, and the Notice 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, broker dealer, or other similar organization, 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 shareholder 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 April 1, 2021, 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 it. 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, Broker or Other Nominee/Agent If on April 1, 2021, 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 four matters scheduled for a vote at the Meeting: (i) to elect two (2) directors to serve until the 2023 Annual Meeting of stockholders and until each of their successors is duly elected and qualified; (ii) to ratify the selection of Marcum LLP as our independent registered public accounting firm for the year ended December 31, 2019; (iii) to approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to reduce the percentage of outstanding shares required to approve an Amendment to the Certificate of Incorporation from 66.667% to a simple majority as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation; and (iv) to approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to allow for any action required or permitted to be taken by the stockholder’s of the Company to be effected by written consent as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation. 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 April 1, 2021. 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: To participate in the virtual Meeting, visit https://www.virtualshareholdermeeting.com/ISUN2020AM 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. 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. | • | 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 May 10, 2021. Our Internet voting procedures are designed to authenticate stockholders by using individual control numbers, which are located on the Proxy Card. |
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 May 10, 2021. 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, Broker or other Nominee 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, broker or other nominee/agent. Your bank, broker or other nominee/agent has enclosed or otherwise provided a voting instruction card for you to use in directing the bank, broker 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? Proposal 1, Election of each of the two director nominees to the Board: Directors are elected by a plurality of the votes cast. With respect to the election of directors, you may vote “FOR” or “WITHHOLD” authority to vote for each of the nominees to the Board. “WITHHOLD” votes and broker non-votes are not considered votes cast for the foregoing purpose, and will have no effect on the election of either of the two Director nominees. If you “WITHHOLD” authority to vote with respect to one or both of the nominees for the Board, your vote will have no effect on the election of either such nominee. Broker non votes will have no effect on the election of the nominees. Proposal 2, Ratification of the appointment of Marcum LLP as our independent public accounting firm for the fiscal year ended December 31, 2019. Adoption of this proposal requires the affirmative vote of the majority of votes cast. You may vote “FOR,” “AGAINST” or “ABSTAIN.” Adoption of this proposal requires the affirmative vote of the majority of votes cast, meaning the number of shares voted “FOR” this proposal must exceed the number of shares voted “AGAINST” this proposal. If you abstain from voting on this proposal, your vote will have no effect for this Proposal. Broker non-votes will have no effect on the vote for this Proposal. Proposal 3, To approve an iSunamendment to the Company’s Second Amended and Restated Certificate of Incorporation to reduce the percentage of outstanding shares required to approve an Amendment to the Certificate of Incorporation from 66.667% to a simple majority, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation. With respect to Proposal 3, you may vote “FOR,” “AGAINST” or “ABSTAIN.” Adoption of this proposal requires the affirmative vote of the holders representing 66.667% of the outstanding shares of Common Stock of the Company (meaning that of the outstanding shares of Common Stock of the Company, 66.667% must be voted “FOR” the proposal for the proposal to be approved). If you “ABSTAIN” from voting with respect to Proposal 3, 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. Proposal 4, To approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to allow for any action required or permitted to be taken by the stockholders of the Company to be effected by written consent, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation. With respect to Proposal 4, you may vote “FOR,” “AGAINST” or “ABSTAIN.” Adoption of this proposal requires the affirmative vote of the holders representing 66.667% of the outstanding shares of Common Stock of the Company (meaning that of the outstanding shares of Common Stock of the Company, 66.667% must be voted “FOR” the proposal for the proposal to be approved). If you “ABSTAIN” from voting with respect to Proposal 4, 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. Does my banker, broker 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. Proposal 2. Ratification of the appointment of Marcum LLP as our independent public accounting firm for the fiscal year ended December 31, 2019 is considered a “discretionary” matter. Proposal 1. Election of Two Directors, Proposal 3. To approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to reduce the percentage of outstanding shares required to approve an Amendment to the Certificate of Incorporation from 66.667% to a simple majority, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation and Proposal 4. To approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to allow for any action required or permitted to be taken by the stockholders of the Company to be effected by written consent, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation, are considered “non-discretionary” matters. For Proposal 1, if you WITHHOLD your vote, it will have no effect on the election of the directors. Proposal 1. Election of Two Directors. In accordance with Company By-Laws, Proposal 1, the election of directors to the Board, directors will be elected by a plurality of the votes cast (meaning that the number of director nominees who receive the highest number of shares voted “FOR” their election are elected). In this case, only two nominees are being presented, so both will be elected if any votes “FOR” their election are cast. With respect to the election of directors, you may vote “FOR” or “WITHHOLD” authority to vote for each of the nominees for the Board. If you “WITHHOLD” your vote, it will have no effect on the election of the directors. Your bank, brokerage firm or other nominee/agent does not have discretionary authority to vote shares for the election of the director nominees. Broker non-votes will have no effect on the election of the nominees. For Proposals 2,3 and 4, if you ABSTAIN from voting on a proposal, your abstention has the same effect as a vote AGAINST that Proposal. Proposal 2, Ratification of the appointment of Marcum LLP as our independent public accounting firm for the fiscal year ended December 31, 2019. You may vote “FOR,” “AGAINST” or “ABSTAIN.” Adoption of this proposal requires the affirmative vote of the majority of votes cast, meaning the number of shares voted “FOR” this proposal must exceed the number of shares voted “AGAINST” this proposal. If you abstain from voting on this proposal, your vote will have no effect for this proposal. Broker non-votes will have no effect on the vote for this Proposal. Your bank, brokerage firm or other nominee/agent does have discretionary authority to vote on Proposal 2 relating to the ratification of the selection of Marcum LLP as our independent public accounting firm for fiscal year ended December 31, 2019. Proposal 3. To approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to reduce the percentage of outstanding shares required to approve an Amendment to the Certificate of Incorporation from 66.667% to a simple majority, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation. With respect to Proposal 3, you may vote “FOR,” “AGAINST” or “ABSTAIN.” Adoption of this proposal requires the affirmative vote of the holders representing 66.667% of the outstanding shares of Common Stock of the Company (meaning that of the outstanding shares of Common Stock of the Company, 66.667% must be voted “FOR” the proposal for the proposal to be approved). If you “ABSTAIN” from voting with respect to Proposal 3, 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 3. Proposal 4, To approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to allow for any action required or permitted to be taken by the stockholders of the Company to be effected by written consent, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation. With respect to Proposal 4, you may vote “FOR,” “AGAINST” or “ABSTAIN.” Adoption of this proposal requires the affirmative vote of the holders representing 66.667% of the outstanding shares of Common Stock of the Company (meaning that of the outstanding shares of Common Stock of the Company, 66.667% must be voted “FOR” the proposal for the proposal to be approved). If you “ABSTAIN” from voting with respect to Proposal 4, 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 4. As a result, if you do not vote your street name shares, your broker has the authority to vote on your behalf only with respect to Proposal 2 (ratification of the selection of the accounting firm). 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, 3 and 4 are considered as “non-discretionary'' matters. Proposal 2 is considered a “discretionary'' matter. 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 the followingfour ways: By deliveringYou may submit another properly completed Proxy Card with a later date;
You may vote again by Internet or telephone at a later time (prior to iSun’s Corporate Secretary (at iSun’s executive offices atthe deadline for Internet or telephone voting); You may send a written notice that you are revoking your proxy to: iSun, Inc., 400 Avenue, D, Suite 10, Williston, Vermont 05495) a signed written notice of revocation bearing a later date thanVT, 05495 You may attend the proxy, stating that the proxy is revoked, which revocation is received prior to the proxy’s exercise at the iSun Special Meeting; By duly executing a subsequently dated proxy relating to the same shares of iSun Common Stockvirtual Meeting and delivering it to iSun’s Corporate Secretary at the address in the bullet point above, which subsequent proxy is received before the prior proxy is exercised at the iSun Special Meeting;
By duly submitting a subsequently dated proxy relating to the same shares of iSun Common Stock by telephone or via the Internet (i.e., your most recent duly submitted voting instructions will be followed) before 11:59 P.M. on February 24, 2020; or
Byvote virtually. Simply attending the iSun Special Meeting and voting such shares during the iSun Special Meeting as described above, although attendance at the iSun Specialvirtual Meeting will not, by itself, revoke ayour proxy.
If you hold your shares of iSun Common Stock are held by a bank, broker or other nominee, you may change your vote by submitting new voting instructions to your bank, broker or other nominee, or applicable plan administrator. You mustin street name, contact your bank, brokerbrokerage firm or other nominee,nominee/agent regarding how to revoke your proxy and change your vote. Your most current Internet proxy, telephone proxy or applicable plan administratorproxy 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 how to do so. Solicitation of Proxies; Expenses of Solicitation
The iSun Board is soliciting proxies for the iSun Special Meeting from its stockholders. iSun will bear the costresults of the solicitation of proxies, including preparation, assembly and delivery, as applicable, of this Proxy Statement,voting at the iSun Proxy Card and any additional materials furnished to iSun stockholders. Proxies may be solicited by directors, officers and a small number of iSun’s regular employees by mail, email, in person and by telephone, but such persons will not receive any additional compensation for these activities. iSun does not plan to retain a proxy solicitor. As appropriate, copies of solicitation materialvirtual Meeting?
Preliminary voting results will be furnished to brokerage houses, fiduciaries and custodians that hold shares of iSun Common Stock of record for beneficial owners for forwarding to such beneficial owners. iSun may also reimburse persons representing beneficial owners for their costs of forwardingannounced at the solicitation material to such owners. Tabulation of Votes
iSunvirtual Meeting. Final voting results will appoint an Inspector of Election forbe published in our Current Report on Form 8-K within four business days after the iSun Special Meeting. The Inspector of Election will independently tabulate affirmative and negative votes and abstentions.
Adjournments
The iSun Special Meeting may be adjourned to allow additional time for obtaining additional proxies. No notice of an adjourned meeting need be givenWhat does it mean if the time and place thereof are announced at the iSun Special Meeting at which the adjournment was taken unless:
the adjournment is forI receive more than 30 days, in which case a notice of the adjourned meeting will be given to each iSun stockholder of record entitled to vote at the iSun Special Meeting; or
if, after the adjournment, a new Record Date for determination of iSun stockholders entitled to vote is fixed for the adjourned meeting, in which case the iSun Board will fix as the Record Date for determining iSun stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of iSun stockholders entitled to vote at the adjourned meeting, and will give notice of the adjourned meeting to each iSun stockholder of record as of such record date.
At any adjourned meeting, all proxies will be voted in the same manner as they would have been voted at the original convening of the iSun Special Meeting, except for any proxies that have been effectively revoked or withdrawn prior to the adjourned meeting.
Assistance and Additional Informationone Proxy Card?
If you need assistance with submitting a proxy to votereceive more than one Proxy Card, your shares of iSun Common Stock via the Internet, by telephoneare registered in more than one name or by completing your iSun Proxy Card, or have questions regarding the iSun Special Meeting, please contact iSun’s Corporate Secretary at (802) 264-2040 (collect for stockholders, banks and brokers) or mdamato@isunenergy.com. Your vote is very important regardless of the number of shares of iSun Common Stock that you own and the matters to be considered at the iSun Special Meeting are of great importance to the stockholders of iSun. Accordingly, you are urged to read and carefully consider the information containedregistered in this Proxy Statement and promptly submit your proxy via the Internet or by telephone ordifferent accounts. Please complete, date, sign and promptly return the enclosed iSuneach Proxy Card, or voting instruction form in the enclosed postage-paid envelope. If you submit your proxy via the Internet or by telephone, you do not need to return the enclosed iSun Proxy Card.
Please vote your shares via the Internet or by telephone or sign, date and return an iSunfor each Proxy Card or voting instruction form promptlyyou received to ensure that all your shares canare 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. When are stockholder proposals due for the 2022 Annual Meeting? The Company did not receive any proposals from stockholders to be represented, evenpresented at the 2021 Annual Meeting of Stockholders which will be held immediately following the conclusion of the 2020 Annual Meeting of Stockholders. Any appropriate proposal submitted by a stockholder and intended to be presented at the 2022 Annual Meeting of Stockholders (the “2022 Annual Meeting”) must be submitted in writing to Mr. Jeffrey Peck, Chief Executive Officer, iSun, Inc. 400 Avenue D, Suite 10, Williston, VT 05495, and received not later than December 24, 2021 to be includable in our Proxy Statement and related proxy for the 2022 Annual Meeting. However, if the date of the 2022 Annual Meeting is changed by more than 30 days from this year’s meeting then the deadline is a reasonable time before the Company begins to print and send its proxy materials. A stockholder proposal will need to comply with the SEC regulations under Rule 14a-8 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), regarding the inclusion of stockholder proposals in company-sponsored proxy materials. Although the Board will consider stockholder proposals, we reserve the right to omit from our Proxy Statement stockholder proposals that we are not required to include under the Exchange Act, including Rule 14a-8. If you otherwise planare submitting a proposal for a meeting of stockholders other than a regularly scheduled annual meeting, the deadline is a reasonable time before we begin to attend the iSun Special Meeting.print and send our proxy materials. iSUN PROPOSALDirectors, Executive Officers and Corporate Governance
iSUN PROPOSAL 1: APPROVAL OF THE iSUNDirectors and Executive Officers
Our directors and executive officers are as follows: Jeffrey Peck | | | 50 | | | Chief Executive Officer, President and Chairman of the Board | John Sullivan | | | 46 | | | Chief Financial Officer | Frederick Myrick | | | 59 | | | EVP of Solar and Director | Stewart Martin | | | 56 | | | Director | Daniel Dus | | | 43 | | | Director | Claudia Meer | | | 59 | | | Director |
Jeffrey Peck was appointed Chief Executive Officer and President of the Company upon the closing of the Reverse Merger and Recapitalization between the Company and Jensysn Acquisition Corp. which occurred on June 20, 2019 (the “Reverse Merger and Recapitalization”). Mr. Peck previously was the majority owner and President of Peck Electric Co. (“Peck Electric”) since he purchased it from his family in the late 1990s. Since then, Mr. Peck transformed Peck Electric from a local electrical contracting business to one of the largest commercial solar EPC companies in the Northeastern United States, ranked 59th in the U.S. for 2020 EQUITY INCENTIVE PLANby Solar Power World (listed as, “Peck Electric Company”). Mr. Peck grew Peck Electric to nearly 100 employees, with many employees having tenures over 30 years. Mr. Peck was also responsible for timing the strategic direction of Peck Electric’s focus into solar EPC at the time when solar installation became a profitable business in 2013 and also began investing in Company-owned arrays, with a portfolio now approximately three megawatts. Mr. Peck has served as Chairman of Vermont Electrical Contractors, Chairman of the Joint Health and Welfare Committee as well as the IBEW Local 300 Pension funds. Mr. Peck graduated from Champlain College in 1993. Mr. Peck is well qualified to serve as a director due to his extensive management experience of the Company. As discussed elsewhereJohn Sullivan was appointed Chief Financial Officer of the Company in August 2019. Mr. Sullivan previously served as Chief Financial Officer and Chief Operating Officer of Mammut Sports Group, Inc., a Swiss multinational mountaineering and trekking company, from July 2018 to August 2019. From October 2015 to July 2018, Mr. Sullivan served as Vice President of Finance, Administration and Control of Nokian Tyres, North America, a Finnish tire manufacturing company. In such roles, Mr. Sullivan developed and managed all financial, administrative and internal control responsibilities for such companies’ North American operations, among other responsibilities. From October 2007 to October 2015, Mr. Sullivan served as Chief Financial Officer of Century Arms, Inc., Century International Arms, Inc. and Century International Arms, Corp., U.S. based firearms importers and manufacturers, where he managed the financial and accounting divisions of such companies. Prior to serving in such executive roles, Mr. Sullivan held consulting and senior accountant positions at Green Cab, LLC, The Syndio Group, Gallagher, Flynn & Company, Little Man, Inc. and the New England Culinary Institute. Mr. Sullivan holds a B.S. in Business Management from Union Institute & University. Mr. Sullivan is well qualified to serve as a director due to his extensive experience as a corporate financial officer, CFO and COO.
Fredrick “Kip” Myrick was appointed to the Board of Directors of the Company and Executive Vice President of Solar upon the consummation of the Reverse Merger and Recapitalization, and had previously worked at Peck Electric for over 30 years since joining in 1988 as a journeyman electrician, including serving as Peck Electric’s Vice President until the consummation of the Reverse Merger and Recapitalization. In 1993, Mr. Myrick was promoted to foreman and successfully managed the numerous small and large-scale projects at Global Foundries, IBM’s chip-manufacturing business. From 1995 to 1998 Mr. Myrick held positions of general foreman and superintendent, then project manager/estimator in 2005. In 2006, Mr. Myrick became a significant minority shareholder in the Company and its Vice President, then started the Peck Solar division in 2008 and has managed the construction of the largest solar array in Vermont. Mr. Myrick is also responsible for the innovative dual-use farming of saffron with solar arrays in collaboration with the University of Vermont, which has attracted national news attention. Mr. Myrick is a NABCEP-certified Photovoltaic Installation Professional and holds a Vermont Master Electricians License. Mr. Myrick is well qualified to serve as a director due to his experience in solar project design and construction. Stewart Martin was appointed to the Board of Directors of the Company upon the consummation of the Company’s Reverse Merger and Recapitalization with Jensyn Acquisition Corp. and previously served as a member of Jensyn’s Board of Directors since November 2016. Since August 2013, he has served as Executive Vice President, Sales and Producer Development of Marsh & McLennan Agencies – Florida, a subsidiary of Marsh & McLennan Companies. He previously served as Senior Vice President and a member of the Board of Directors of Seitlin Insurance and Advisors, which was acquired by Marsh & McLennan, LLC in November 2011. Mr. Martin is well qualified to serve as independent director due to his substantial management and previous board experience. Daniel Dus was appointed to the Board of Directors of the Company in September 2019. Mr. Dus has served as the Head of Renewables Business, North America since July 2017 for Adani Solar USA, Inc., an affiliate of Adani Group, which is an integrated business conglomerate in India that consists of six publicly traded companies. In this Proxy Statement, iSun stockholders are consideringrole, Mr. Dus managed the construction of 453 megawatts in solar projects and votingdeveloped a 1.8 gigawatt pipeline of solar projects for Adani Group in the U.S. From November 2015 to approveJuly 2017, Mr. Dus served as the chief development officer for Dynamic Energy Solutions, LLC, a full-service solar energy provider where Mr. Dus was responsible for new market entry, with a focus on greenfield development, community solar and shared renewables. From August 2013 to November 2015, Mr. Dus served as the chief strategy officer for Safari Energy, LLC, a solar power provider focused on serving real estate investment trusts, where Mr. Dus was responsible for business and project development process creation, integration, training and improvement. Prior to that, Mr. Dus served as the chief operations officer and the chief financial officer from September 2008 to August 2013 for Martifer Solar, S.A., a global solar photovoltaic power developer and engineering, construction and procurement, and operations and maintenance provider. At Martifer Solar, S.A., Mr. Dus was responsible for over 1,200 solar clients serviced under leases, power purchase agreements, direct purchase and community solar models, for managing a solar services platform that engaged 75 full time staff members and over 1,000 subcontracted laborers, and for obtaining corporate investment facilities and bonding facilities. Mr. Dus holds a Master of Business Administration from Drexel University and is a certified solar designer, Stanford-certified project manager, Villanova-certified Six Sigma Master Lean Blackbelt, and holds over fifty certificates in energy hedging, grid infrastructure and emerging energy technologies, as well as an OSHA 30. Mr. Dus owns the first property in the world ever powered by alternating current electricity. Mr. Dus is well qualified to serve as independent director due to his extensive industry and management experience. Claudia Meer was appointed as a director on the iSun, 2020 Equity Incentive Plan. iSun stockholders should read carefully this Proxy StatementInc. Board of Directors on February 1, 2021, with such appointment effective as of February 1, 2021. The Board determined that Ms. Meer qualifies as “independent” in its entirety for more detailed information concerningaccordance with the Equity Incentive Plan. In particular, iSun stockholders are directedpublished listing requirements of Nasdaq. Ms. Meer has been appointed to the Equity Incentive Plan attachedCompany’s Compensation Committee, Corporate Governance/Nominating Committee and Audit Committee. Ms. Meer’s appointment to the Board brought the Company into compliance with Nasdaq’s independent director and audit committee requirements as Annexset forth in Listing Rule 5605. Ms. Meer has more than 30 years’ experience in corporate finance, strategy, creative deal structuring and executive leadership in real estate, hospitality, telecom, and financial services industries. For the past twelve years she has driven financial transactions in the clean energy industry. Ms. Meer formerly served as Chief Investment Officer & Chief Financial Officer at AlphaStruxure, a venture created in early 2019 by the Carlyle Group and Schneider Electric to develop and fund clean energy infrastructure. Ms. Meer is qualified to serve on finance and audit committees as a financial expert. Family Relationships There are no family relationships among any of our directors or executive officers. Involvement in Certain Legal Proceedings No officer, director, or persons nominated for such positions, promoter or significant employee of the Company has been involved in the last ten years in any of the following: any bankruptcy petition filed by or against any business of which such person was a general partner or executive officer either at the time of the bankruptcy or within two years prior to that time; any conviction in a criminal proceeding or being subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); being subject to any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting his/her involvement in any type of business, securities or banking activities; being found by a court of competent jurisdiction (in a civil action), the Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended, or vacated; having any government agency, administrative agency, or administrative court impose an administrative finding, order, decree, or sanction against them as a result of their involvement in any type of business, securities, or banking activity; being the subject of a pending administrative proceeding related to their involvement in any type of business, securities, or banking activity; or having any administrative proceeding been threatened against him/her related to their involvement in any type of business, securities, or banking activity. Classified Board of Directors In accordance with our Second Amended and Restated Certificate of Incorporation, our Board of Directors is divided into three classes, i.e. Class A, Class B and Class C, with only one class of directors being elected in each year and each class serving a three-year term. Our Board of Directors consists of five members. The only terms expiring at the 2020 Annual Meeting of Stockholders are the term of the Class A directors, i.e. Messrs. Dus and Martin. During the fiscal year ended December 31, 2019, our Board of Directors held two meetings and acted by Unanimous Written Consent on two occasions and our Audit Committee held four meetings and acted by Unanimous Written Consent on no occasions. Our Compensation Committee did not meet during the fiscal year ended December 31, 2019. During the fiscal year ended December 31, 2019, each of our directors attended at least 75% of the Board meetings and their respective committee meetings. The Company does not have a policy regarding director attendance at annual meetings but encourages the directors to attend if possible. Committees of the Board of Directors The standing committees of our Board of Directors consists of an Audit Committee, a Compensation Committee and a Corporate Governance and Nominating Committee. Each of the committees report to the Board of Directors as they deem appropriate and as the Board may request. The composition, duties and responsibilities of these committees are set forth below. Audit Committee The Board has established an Audit Committee of the Board of Directors, which during the year ended December 31, 2019 consisted of Messrs. Dus and Martin and an individual who resigned (due to a potential conflict of interest in connection with a pending merger transaction that was not completed) from the Board of Directors and all committees on which he served, each of whom met the independent director standard under Nasdaq’s listing standards and under Rule 10A-3(b)(1) of the Exchange Act. Effective as of February 1, 2021, Ms Meer serves as Chair of our Audit Committee. The Audit Committee’s duties, which are specified in our Audit Committee Charter, include, but are not limited to: reviewing and discussing with management and the independent auditor the annual audited financial statements, and recommending to the board whether the audited financial statements should be included in our Form 10-K; discussing with management and the independent auditor significant financial reporting issues and judgments made in connection with the preparation of our financial statements; discussing with management major risk assessment and risk management policies; monitoring the independence of the independent auditor; verifying the rotation of the lead (or coordinating) audit partner having primary responsibility for the audit and the audit partner responsible for reviewing the audit as required by law; reviewing and approving all related-party transactions; inquiring and discussing with management our compliance with applicable laws and regulations; pre-approving all audit services and permitted non-audit services to be performed by our independent auditor, including the fees and terms of the services to be performed; appointing or replacing the independent auditor; determining the compensation and oversight of the work of the independent auditor (including resolution of disagreements between management and the independent auditor regarding financial reporting) for the purpose of preparing or issuing an audit report or related work; establishing procedures for the receipt, retention and treatment of complaints received by us regarding accounting, internal accounting controls or reports which raise material issues regarding our financial statements or accounting policies; and approving reimbursement of expenses incurred by our management team in identifying potential target businesses. The Audit Committee will at all times be composed exclusively of independent directors who are “financially literate” as defined under Nasdaq’s listing standards. The Nasdaq listing standards define “financially literate” as being able to read and understand fundamental financial statements, including a company’s balance sheet, income statement and cash flow statement. In addition, we must certify to the Nasdaq Capital Market that the audit committee has, and will continue to have, at least one member who has past employment experience in finance or accounting, requisite professional certification in accounting, or other comparable experience or background that results in the individual’s financial sophistication. We have determined that each of Mr. Dus and Ms. Meer satisfy Nasdaq’s definition of financial sophistication and each also qualifies as an “audit committee financial expert,” as defined under the rules and regulations of the SEC. Our Board of Directors has adopted a written charter for the Audit Committee, which is available on our corporate website at www.isunenergy.com. The information on our website is not part of this Proxy Statement. ApprovalCompensation Committee
The current members of our Compensation Committee are Ms. Meer (as of February 1, 2021) and Messrs. Dus and Martin, with Mr. Martin serving as Chair of the Equity Incentive Plan requiresCompensation Committee. The Compensation Committee’s duties, which are specified in our Compensation Committee Charter, include, but are not limited to: reviewing and approving on an annual basis the affirmative votecorporate goals and objectives relevant to our President and Chief Executive Officer’s compensation, evaluating our President and Chief Executive Officer’s performance in light of such goals and objectives and determining and approving the remuneration of our President and Chief Executive Officer based on such evaluation; reviewing and approving the compensation of all of our other executive officers; reviewing our executive compensation policies and plans; implementing and administering our incentive compensation equity-based remuneration plans; reviewing, evaluating and recommending changes, if appropriate, to the remuneration for directors. Our Board of Directors has adopted a written charter for the Corporate Governance and Nominating Committee, which is available on our corporate website at www.isunenergy.com. The information on our website is not part of this Proxy Statement. The charter also provides that the Compensation Committee may, in its sole discretion, retain or obtain the advice of a compensation consultant, legal counsel or other adviser and will be directly responsible for the appointment, compensation and oversight of the holderswork of any such adviser. However, before engaging or receiving advice from a majoritycompensation consultant, external legal counsel or any other adviser, the Compensation Committee will consider the independence of each such adviser, including the factors required by Nasdaq and the SEC. Corporate Governance and Nominating Committee Our Corporate Governance and Nominating Committee is responsible for, among other matters: (1) identifying individuals qualified to become members of our Board of Directors, consistent with criteria approved by our Board of Directors; (2) overseeing the organization of our Board of Directors to discharge the Board’s duties and responsibilities properly and efficiently; (3) identifying best practices and recommending corporate governance principles; and (4) developing and recommending to our Board of Directors a set of corporate governance guidelines and principles applicable to us. Our Corporate Governance and Nominating Committee consists of Ms. Meer (as of February 1, 2021) and Messrs. Dus and Martin, with Mr. Dus serving as the chair. Our Board of Directors has adopted a written charter for the Corporate Governance and Nominating Committee, which is available on our corporate website at www.isunenergy.com. The information on our website is not part of this Proxy Statement. Compensation Committee Interlocks and Insider Participation During 2019, no officer or employee served as a member of the voting powerCompany’s Compensation Committee. None of our executive officers serve as a member of the sharesBoard of iSun Common Stock, presentDirectors or represented by proxy atCompensation Committee of any entity that has one or more executive officers serving on our Board of Directors or Compensation Committee. Director Independence Our Board of Directors has determined that Messrs. Dus and Martin and Ms. Meer are “independent directors” as such term is defined in Rule 10A-3 of the iSun Special Meeting,Exchange Act and entitled to vote on approval of iSun 2020 Equity Incentive Plan.the Nasdaq listing standards. iSUN EXECUTIVE COMPENSATIONExecutive Compensation
Compensation Discussion and Analysis The following iSun Executive Compensation Discussion and Analysis describes the material elements of compensation for iSun’sour executive officers identified in the Summary Compensation Table (“Named Executive Officers”), and executive officers that iSunwe may hire in the future. The iSunAs more fully described above, the Compensation Committee is responsible for recommendations relating to compensation of iSun’sthe Company’s directors and executive officers. Compensation Program Objectives and Rewards iSun’sOur compensation philosophy is based on the premise of attracting, retaining, and motivating exceptional leaders, setting high goals, working toward the common objectives of meeting the expectations of customers and stockholders, and rewarding outstanding performance. Following this philosophy, in determining executive compensation, iSun considerswe consider all relevant factors, such as the competition for talent, iSun’sour desire to link pay with performance in the future, the use of equity to align executive interests with those of iSun’s stockholders,our Stockholders, individual contributions, teamwork and performance, and each executive’s total compensation package. iSun strivesWe strive to accomplish these objectives by compensating all executives with total compensation packages consisting of a combination of competitive base salary and incentive compensation.
The primary purpose of the compensation and benefits described below is to attract, retain, and motivate highly talented individuals who will engage in the behaviors necessary to enable iSunus to succeed in itsour mission while upholding itsour values in a highly competitive marketplace. Different elements are designed to engender different behaviors, and the actual incentive amounts, which may be awarded to each Named Executive Officer are subject to the annual review of the boardBoard of directors.Directors. The following is a brief description of the key elements of iSun’sour planned executive compensation structure. Base salary and benefits are designed to attract and retain employees over time. Incentive compensation awards are designed to focus employees on the business objectives for a particular year. Equity incentive awards, such as stock options and non-vested stock, focus executives’ efforts on the behaviors within the recipients’ control that they believe are designed to ensure iSun’sour long-term success as reflected in increases to iSun’sour stock prices over a period of several years, growth in iSun’sour profitability and other elements. Severance and change in control plans are designed to facilitate a company’s ability to attract and retain executives as iSun competeswe compete for talented employees in a marketplace where such protections are commonly offered. iSunWe currently hashave not given separation benefits to any of its Nameour Named Executive Officers. Benchmarking iSun hasWe have not yet adopted benchmarking but may do so in the future. When making compensation decisions, iSun’sour Board of Directors may compare each element of compensation paid to theour Named Executive Officers against a report showing comparable compensation metrics from a group that includes both publicly-traded and privately-held companies. iSun’sOur Board believes that while such peer group benchmarks are a point of reference for measurement, they are not necessarily a determining factor in setting executive compensation as each executive officer’s compensation relative to the benchmark varies based on scope of responsibility and time in the position. iSun hasWe have not yet formally established itsour peer group for this purpose.
The Elements of iSun’s Compensation Program Base Salary Executive officer base salaries are based on job responsibilities and individual contribution. The iSun Board reviews the base salaries of iSun’sour executive officers, including itsour Named Executive Officers, considering factors such as corporate progress toward achieving objectives (without reference to any specific performance-related targets) and individual performance experience and expertise. Additional factors reviewed by the Board of Directors in determining appropriate base salary levels and raises include subjective factors related to corporate and individual performance. For the yearsyear ended December 31, 2020 and December 31, 2019, the iSun Board of Directors approved all executive officer base salary decisions. iSun’sOur Board of Directors determines base salaries for the Named Executive Officers annually, and the iSun Board, upon recommendation of the compensation committeeCompensation Committee proposes new base salary amounts, if appropriate, based on its evaluation of individual performance and expected future contributions. iSun adopted a 401(k) Plan in 2016 and base salary is the only element of compensation that is used in determining the amount of contributions permitted under the 401(k) Plan.
Summary Compensation Table The following table sets forth information regarding the compensation awarded to or earned by the iSun executive officers listed below during the years ended December 31, 2020 and 2019. As an emerging growth company, iSun haswe have opted to comply with the reduced executive compensation disclosure rules applicable to “smaller reporting companies,” as such term is defined in the rules promulgated under the Securities Exchange Act, of 1934, as amended, which require compensation disclosure for only iSun’sour principal executive officer and the two most highly compensated executive officers other than iSun’sour principal executive officer. Throughout this section,Proxy Statement, these officers are referred to as iSun’sour “named executive officers.” Jeffrey Peck | | | 2020 | | | $393,372 | | | $78,847 | | | $— | | | — | | | $— | | | $472,219 | Chief Executive Officer, President and Chairman
| | | 2019 | | | $299,600 | | | $80,538 | | | $— | | | — | | | $— | | | $380,138 | | | | | | | | | | | | | | | | | | | | | | | Fred Myrick | | | 2020 | | | $346,461 | | | $79,066 | | | $— | | | — | | | $— | | | $425,527 | EVP of Solar
| | | 2019 | | | $299,600 | | | $80,967 | | | $— | | | — | | | $— | | | $380,567 | | | | | | | | | | | | | | | | | | | | | | | John Sullivan | | | 2020 | | | $167,453 | | | $44,870 | | | $— | | | — | | | $— | | | $212,323 | Chief Financial Officer
| | | 2019 | | | $52,308 | | | $36,527 | | | $— | | | — | | | $— | | | $88,635 |
Jeffrey Peck
Chief Executive Officer,
President and Chairman
| | | 2020 | | | $472,219 | | | $78,847 | | | $— | | | — | | | $— | | | $551,066 | | | 2019 | | | $299,600 | | | $80,538 | | | $— | | | — | | | $— | | | $380,138 |
| | | | | | | | | | | | | | | | | | | | | | Fred Myrick
EVP of Solar
| | | 2020 | | | $346,461 | | | $79,066 | | | $— | | | — | | | $— | | | $425,527 | | | 2019 | | | $299,600 | | | $80,967 | | | $— | | | — | | | $— | | | $380,567 |
| | | | | | | | | | | | | | | | | | | | | | John Sullivan
Chief Financial Officer
| | | 2020 | | | $167,453 | | | $44,870 | | | $— | | | — | | | $— | | | $212,323 | | | 2019 | | | $52,308 | | | $36,527 | | | $— | | | — | | | $— | | | $88,835 |
Nonqualified Deferred Compensation iSunWe did not sponsor any nonqualified defined contribution plans or other nonqualified deferred compensation plans during the years ended December 31, 2020 and 2019. Similarly, iSunwe did not sponsor any nonqualified defined contribution plans or other nonqualified deferred compensation plans during the years ended December 31, 2020 and 2019. iSun’sOur management or compensation committee may elect to provide itsour executive officers and other employees with nonqualified defined contribution or other nonqualified deferred compensation benefits in the future if iSun determineswe determine that doing so is in our best interests.
Outstanding Equity Awards as of December 31, 2019 On October 8, 2020, and asour Board of Directors adopted the Record Date No awards were made under theiSun 2020 Equity Incentive Plan, in 2020. Consequently noand the Company’s stockholders voted to adopt the iSun 2020 Equity Incentive Plan at a Special Meeting of the Stockholders held on February 25, 2021. No option or other awards were issued to its named executive officersour Named Executive Officers or were outstanding as of December 31, 2020.2019.
Executive Employment Agreements and Arrangements None. Equity Incentive Plans On January 1, 2021October 8, 2020, our Board of Directors adopted the Company allocated an additional 500,000 shares to theiSun 2020 Equity Incentive Plan, and the Board of Directors ofCompany’s stockholders voted to adopt the Company approved awards of restricted shares of Common Stock aggregating 241,000 shares of Common Stock and awards of options to acquire shares of Common Stock aggregating 302,000 options, subject to partial vesting and other restrictions and approval of theiSun 2020 Equity Incentive Plan at thea Special Meeting of Stockholders.the stockholders held on February 25, 2021. On January 19, 2021 the Company changed its corporate name to, “ISun, Inc.” On January 19, 2021, the BoardSecurity Ownership of Directors of the Company approved the change of the name of the Equity Incentive Plan to the 2020 iSun Equity Incentive Plan, as amended, the approval of which is the subject of this Special Meeting. The Equity Incentive Plan, as amended, is attached in its entirety as Annex A.
Executive Employment AgreementsCertain Beneficial Owners and Arrangements
None.
PRINCIPAL STOCKHOLDERS OF iSUNManagement and Related Stockholder MattersThe percentage ownership information shown in the table below is based upon 5,312,8738,778,732 shares of Common Stock outstanding as of the Record Date.April 1, 2021. The number of outstanding shares and the percentage ownership information shown in the table below excludes an aggregate of 2,552,141566,407 shares of Common Stock issuable upon the exercise of 1,132,814 outstanding warrants asto purchase one-half of the Record Date but includesone share of Common Stock at $5.75 per half share and an aggregate of 570 shares of Common Stock issuable in connection with 356 Units outstanding of April 1, 2021. The Units consist of one share of Common Stock, 1/10 of one share of Common Stock and options issued pursuanta Warrant to the Equity Incentive Plan, subject to approvalacquire 1∕2 of the Equity Incentive Planone share of Common Stock at the Special Meetingan exercise price of Stockholders, as indicated in the footnotes below.$5.75 per 1∕2 share. Name and Address of Beneficial Owner(1) | | Shares of
Common
Stock | | Percentage
Owned | | Shares of
Common Stock | | Percentage
Owned | 5% or greater stockholders
| | | | | | | | | Mooers Partners, LLC
240 South Pineapple Ave., Suite 701
Sarasota, FL
| | 310,976(2) | | 5.85% | | Branton Partners, LLC
240 South Pineapple Ave.,
Suite 701
Sarasota, FL
| | 310,976(3) | | 5.85% | | Jeffrey Peck | | | 1,375,304(2) | | 15.67% | Frederick Myrick | | | 635,773(3) | | 7.24% | Altium Capital Management, LP
152 West 57th Street, 20th Floor
New York, NY 10019 | | | 614,000 | | 6.99% | | | | | | | | | | Directors and executive officers
| | | | | | | | | Jeffrey Peck | | 2,426,235(4) | | 45.07% | | 1,375,304(2) | | 15.67% | John Sullivan | | 39,667(5) | | * | | — | | N/A | Frederick Myrick, Jr. | | 703,487(6) | | 13.14% | | Frederick Myrick | | | 635,773(3) | | 7.24% | Daniel Dus | | — | | * | | 1,000 | | * | Stewart Martin | | 4,000 | | * | | 1,000 | | * | Michael d’Amato | | 242,965(7) | | 4.54% | | Claudia Meer | | | — | | N/A | All officers and directors as a group (6 persons) | | 3,416,354 | | 62.07% | | 2,013,577 | | 22.91% |
(1)
| Unless otherwise indicated, the business address of each of the stockholders is 400 Avenue D, Suite 10, Williston, Vermont, VT 05495. |
(2)
| The shares of Common Stock held by Mooers Partners, LLC are subject to a Voting Agreement dated June 20, 2019 among iSun, Jeffrey Peck, Mooers Partners, LLC and certain other parties, pursuant to which Mr. Peck has sole voting power of all such shares held by Mooers Partners, LLC. Mooers Partners, LLC has retained an economic interest in such shares. |
(3)
| The shares of Common Stock held by Branton Partners, LLC are subject to a Voting Agreement dated June 20, 2019, between iSun, Jeffrey Peck, Branton Partners, LLC and certain other parties pursuant to which Mr. Peck has sole voting power of all such shares held by Branton Partners, LLC. Branton Partners, LLC has retained an economic interest in such shares. |
(4)
| Includes 27,333 shares of Common Stock issued to Mr Peck and options to acquire 43,333 shares of Common Stock, each of which were granted to Mr. Peck pursuant to the Company’s Equity Incentive Plan. Pursuant to a Voting Agreement dated June 20, 2019 between iSun and Mr. Peck and certain other parties,individuals (the “Key Holders”), Mr. Peck has sole voting power over an aggregate of 948,595the shares held by each of the following iSun stockholdersKey Holders listed in this footnote 2, including 310,976275,000 shares of Common Stock held by Mooers Partners, LLC, (as indicated in footnote (2) above), 310,976275,000 shares of Common Stock held by Branton Partners, LLC, (as indicated in footnote 3 above), 213,318 shares of Common Stock held by Veroma, LLC, 90,660 shares of Common Stock held by Corundum, AB and 22,665 shares of Common Stock held by Joseph Bobier. |
(5)(3)
| Includes 25,667 shares of Common Stock issued to Mr. Sullivan and options to acquire 14,000 shares of Common Stock, each of which were granted to Mr. Sullivan pursuant to the Company’s Equity Incentive Plan. |
(6)
| Includes 18,667 shares of Common Stock issued to Mr. Myrick and options to acquire 21,667 shares of Common Stock each of which were granted to Mr. Myrick under the Company’s Equity Incentive Plan. An aggregate of 678,487 of theseThese shares are held by The Mykilore Trust of which Mr. Myrick is a trustee. |
(7)
| Includes 18,667 shares of Common Stock issued to Mr. d’Amato and options to acquire 21,667 shares of Common Stock, each of which were granted to Mr. d’Amato pursuant to the Company’s Equity Incentive Plan. |
Certain Relationships and Related Transactions and Director Independence Director IndependencePROPOSAL 1
APPROVAL OF THE COMPANY’S EQUITY INCENTIVE PLAN
Background
On October 28, 2020, theOur Board of Directors presently consists of The Peck Company Holdings, Inc., now iSun, Inc., approved the adoption of The Peck Company Holdings, Inc. 2020 Equity Incentive Plan. We are asking our stockholders to approve the 2020 iSun Equity Incentive Plan, as amended (the “Equity Incentive Plan”), including the reservation of a total of 1,000,000 shares of Common Stock.
five members. Our named executive officers and directors have an interest in this proposal as a result of the Awards (as hereinafter defined) that have been or may be granted to them under the Equity Incentive Plan. Highlights of the Equity Incentive Plan
Purpose
The purpose of the Equity Incentive Plan is to promote the success of the Company and its affiliates by facilitating the employment and retention of competent personnel and by furnishing incentives to those employees, directors, and consultants upon whose efforts the success of the Company and its affiliates will depend to a large degree.
Eligible Participants
All employees, officers, directors, and consultants of the Company and its affiliates may participate in the Equity Incentive Plan. As of the date hereof, the Company has approximately 110 employees, officers, and two non-employee directors.
Administration
The Equity Incentive Plan is administered by the Company's Board of Directors; provided however,Directors has determined that the Board may delegate some or alleach of the administration of the Equity Incentive Plan to a committee or committees. The BoardDus, Martin and any committee appointedMeer are “independent,” as defined by the Board to administer the Equity Incentive Plan are collectively referred to as the “Administrator.”
Types of Awards
The Equity Incentive Plan permits the Administrator to grant:
Options. Options granted under the Equity Incentive Plan may be either “incentive” stock options within the meaning of Section 422 of the Internal Revenue Code (the “Code”) or “nonqualified” stock options that do not qualify for special tax treatment of Code Section 422.
Restricted Stock Awards and Restricted Stock Units. The Equity Incentive Plan also permits awards of restricted stock and restricted stock units. Restricted stock units may be paid in cash or in shares of the Company's Common Stock, or any combination thereof, in the Administrator's discretion.
Performance Awards. Performance share and performance unit awards may be granted under the Equity Incentive Plan. Performance share awards generally provide the Participant with the opportunity to receive shares of the Company's Common Stock and performance units generally provide recipients with the opportunity to receive cash awards, but only if certain performance criteria are achieved over specified performance periods.
Stock Appreciation Rights. The Equity Incentive Plan permits awards of stock appreciation rights, which may be granted independent of or in tandem with a previously or contemporaneously granted stock option. Generally, upon the exercise of a stock appreciation right, the Participant will receive cash, shares of Common Stock, or some combination thereof, having a value equal to the excess of (i) the fair market value of a specified number of shares of the Company's Common Stock, over (ii) a specified exercise price.
Reserved Shares
The stock to be awarded or optioned under the Equity Incentive Plan consists of authorized but unissued shares of common stock. The maximum aggregate number of shares of the Company’s Common Stock currently reserved and available for award under the Equity Incentive Plan is 1,000,000 shares of Common Stock,
provided however, that all shares of stock reserved and available under the Equity Incentive Plan constitute the maximum aggregate number of shares of stock that may be issued through incentive stock options. The following shares of Common Stock will not reduce the pool of authorized shares and will continue to be reserved and available for future awards grantedSEC rules adopted pursuant to the Equity Incentive Plan: (i) all or any portion of any outstanding restricted stock award or restricted stock unit that expires or is forfeited for any reason, or that is terminated prior to the vesting or lapsingrequirements of the risksSarbanes-Oxley Act of forfeiture on such award,2002 and (ii) shares of Common Stock covered by an award to the extent the award is settled in cash; provided, however, that the full number of shares of Common Stock subject to a stock appreciation right will reduce the number of shares available for future awards under the Equity Incentive Plan, whether such stock appreciation right is settled in cash or shares of Common Stock. Any shares of Common Stock withheld to satisfy tax withholding obligations on an award, shares of Common Stock withheld to pay the exercise price of an option, and shares of common stock subject to a broker-assisted cashless exercise of an option will reduce the number of shares available for future awards under the Equity Incentive Plan.
Annual Award Limits
Unless and until the Administrator determines that an award to a “covered employee” (as defined in Section 162(m) of the Code) is not intended to be performance-based compensation, the following limits (each, an “Annual Award Limit,” and collectively, “Annual Award Limits”) apply to grants of such awards under the Equity Incentive Plan:
Options and Stock Appreciation Rights. The maximum number of shares of Common Stock subject to Options granted and shares of Common Stock subject to Stock Appreciation Rights granted in any one calendar year to any one Participant is, in the aggregate, 200,000 shares, subject to adjustment for certain corporate events.
Restricted Stock Awards and Restricted Stock Units. The maximum grant with respect restricted stock awards and restricted stock units in any one calendar year to any one Participant is, in the aggregate, 100,000 shares, subject to adjustment for certain corporate events.
Amendments
The Board may from time to time, insofar as permitted by law, suspend or discontinue the Equity Incentive Plan or revise or amend it in any respect. However, except to the extent required by applicable law or regulation or except as provided under the Equity Incentive Plan itself, the Board may not, without shareholder approval, revise or amend the Equity Incentive Plan to (i) materially increase the number of shares subject to the Equity Incentive Plan, (ii) change the designation of participants, including the class of employees, eligible to receive awards, (iii) decrease the price at which options or stock appreciation rights may be granted, (iv) cancel, regrant, repurchase for cash, or replace options or stock appreciation rights that have an exercise price in excess of the fair market value of the common stock with other awards, or amend the terms of outstanding options or stock appreciation rights to reduce their exercise price, (v) materially increase the benefits accruing to participants under the Equity Incentive Plan, or (vi) make any modification that will cause incentive stock options to fail to meet the requirements of Section 422 of the Internal Revenue Code.
Term
The Administrator may grant awards under the Equity Incentive Plan from time to time until the Administrator discontinues or terminates the Equity Incentive Plan; provided, however, that in no event may incentive stock options be granted pursuant to the Equity Incentive Plan after the earlier of (i) the date the Administrator discontinues or terminates the Equity Incentive Plan, or (ii) the close of business on the day immediately preceding the tenth anniversary of the effective date of the Equity Incentive Plan.
Change of Control
Unless otherwise provided in the terms of an award, upon a change of control of the Company, as defined in the Equity Incentive Plan, the Administrator may provide for one or more of the following: (i) the acceleration of the exercisability, vesting, or lapse of the risks of forfeiture of any or all awards (or portions thereof), (ii) the complete termination of the Equity Incentive Plan and the cancellation of any or all awards (or portions thereof) which have not been exercised, have not vested, or remain subject to risks of forfeiture, as applicable in each
case as of the effective date of the change of control, (iii) that the entity succeeding the Company by reason of such change of control, or the parent of such entity, shall assume or continue any or all awards (or portions thereof) outstanding immediately prior to the change of control or substitute for any or all such awards (or portions thereof) a substantially equivalent award with respect to the securities of such successor entity, as determined in accordance with applicable laws and regulations, or (iv)Rule 4200(a) (15) of the Marketplace Rules of the Nasdaq Stock Market, Inc.
In 2014, the minority stockholders of Peck Electric Co., who sold the building that participants holding outstanding awards will become entitled to receive, with respect to each share of common stock subject to such award (whether vested or unvested, as determined by the Administrator pursuantCompany previously occupied, lent the proceeds to the Equity Incentive Plan) asmajority stockholders of Peck Electric Co. who contributed $400,000 of the effective date of any such change of control, cashnet proceeds as paid in amount equal to (1) for participants holding options, the excess of the fair market value of such common stock on the date immediately preceding the effective date of such change of control over the exercise price per share of options, or (2) for participants holding awards other than options, the fair market value of such common stock on the date immediately preceding the effective date of such change of control. The Administrator need not take the same action with respect to all awards (or portions thereof) or with respect to all participants. The foregoing summary of the material terms of the Equity Incentive Plan does not purport to be complete and is qualified in its entirety by reference to the text of the Equity Incentive Plan, which is attached to this Proxy Statement as Annex A.
New Plan Benefits
Other than the awards described above, the Company does not have any obligations to issue awards under the Equity Incentive Plan that are currently determinable.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE PROPOSAL TO ADOPT THE EQUITY INCENTIVE PLAN, WHICH IS ATTACHED TO THIS PROXY STATEMENT AS ANNEX A.
DEADLINES FOR SUBMITTING iSUN STOCKHOLDER PROPOSALS
Stockholder Proposals
The Company did not hold an Annual Meeting of Stockholders in 2020 with respect to the Company’s fiscal year endedcapital. At December 31, 2019. The Company anticipates holding its 2020 Annual Meeting immediately before its 2021 Annual Meeting with respect to the Company’s fiscal year endedand December 31, 2020. The Company has not yet established a date2019, the amount owed of $73,000 and time for the 2020 Annual Meeting and 2021 Annual Meeting, but anticipates they will be held in May, 2021. Stockholders may present proper proposals for inclusion in iSun’s Proxy Statement and for consideration at the next Annual Meeting of Stockholders by submitting their proposals in writing to iSun’s Corporate Secretary in a timely manner. For a stockholder proposal to be considered for inclusion in iSun’s Proxy Statement for its 2020 Annual Meeting and/or 2021 Annual Meeting of Stockholders, iSun’s Corporate Secretary must receive the written proposal at iSun’s principal executive offices not later than March, 31, 2021. In addition, stockholder proposals must comply with the requirements of Rule 14a-8 regarding the inclusion of stockholder proposals in company-sponsored proxy materials. Stockholder proposals should be addressed to:
iSun, Inc.
400 Avenue D, Suite 10, Williston, Vermont 05495
Attention: Secretary
The iSun Bylaws also establish an advance notice procedure for stockholders who wish to present a proposal before an Annual Meeting of Stockholders but do not intend for the proposal to be$117,605, respectively, is included in iSun’s Proxy Statement. The iSun Bylaws provide that the only business that may be conducted at an Annual Meeting of Stockholders“due to stockholders” as there is business that is (i) specified in iSun’s proxy materials with respecta right to such meeting, (ii) otherwise properly brought before such meeting by or at the direction of the iSun Board, or (iii) properly brought before such meeting by a stockholder of record entitled to vote at the Annual Meeting who has delivered timely written notice to iSun’s Corporate Secretary, which notice must contain the information specified in the iSun Bylaws. To be timely for iSun’s 2020 Annual Meeting of Stockholders and/or 2021 Annual Meeting of Stockholders, iSun’s Corporate Secretary must receive the written notice at iSun’s principal executive offices:
not earlier than March 1, 2021; and
not later than the close of business on March 31, 2021.
If a stockholder who has notified iSun of his, hers or its intention to present a proposal at an annual meeting does not appear to present his, her or its proposal at such annual meeting, iSun is not required to present the proposal for a vote at such annual meeting.
Stockholder Recommendations for Nominations to the Board of Directors and Nominations of Director Candidates
iSun’s Nominating Committee will consider candidates for director recommended by stockholders holding at least one percent (1%) of the fully diluted capitalization of iSun continuously for at least twelve (12) months prior to the date of the submission of the recommendation, so long as such recommendations comply with the iSun Certificate of Incorporation and the iSun Bylaws and applicable laws, rules and regulations, including those promulgated by the SEC. iSun’s Nominating Committee will evaluate such recommendations in accordance with the iSun Certificate of Incorporation, the iSun Bylaws, its policies and procedures for director candidates, as well as other director nominee criteria. This process is designed to ensure that iSun’s Board includes members with diverse backgrounds, skills and experience, including appropriate financial and other expertise relevant to iSun’s business. Eligible stockholders wishing to recommend a candidate for nomination should contact iSun’s Corporate Secretary in writing. Such recommendations must include information about the candidate, a statement of support by the recommending stockholder, evidence of the recommending stockholder’s ownership of iSun’s Common Stock and a signed letter from the candidate confirming willingness to serve on iSun’s Board. iSun’s Nominating Committee has discretion to decide which individuals to recommend for nomination as directors.
Any recommendation for nomination must comply with the requirements set forth in the iSun Bylaws and should be sent in writing to iSun’s Corporate Secretary at iSun, Inc., 400 Avenue D, Suite 10, Williston, Vermont 05495.
To be timely for iSun’s 2021 Annual Meeting of Stockholders, iSun’s Corporate Secretary must receive the nomination no earlier than March 1, 2021 and no later than March 31, 2021.offset.
In addition, the iSun Bylaws permitMay 2018, stockholders to nominate directors for election at an Annual Meeting of Stockholders. To nominate a director, the stockholder must provide the information required by the iSun Bylaws. In addition, the stockholder must give timely notice to iSun’s Corporate Secretary in accordance with the iSun Bylaws, which, in general, require that the notice be received by iSun’s Corporate Secretary within the time periods described above under “Stockholder Proposals” for stockholder proposals that are not intended to be included in a Proxy Statement. HOUSEHOLDING OF PROXY MATERIALS
The SEC has adopted rules that permit companies and intermediaries such as brokers to satisfy delivery requirements for proxy statements and annual reports with respect to two or more stockholders sharing the same address by delivering a single proxy statement or annual report, as applicable, addressed to those stockholders. As permitted by the Exchange Act, only one copy of this Proxy Statement is being delivered to iSun stockholders residing at the same address, unless such stockholders, as applicable, have notified iSun of their desire to receive multiple copies of the Proxy Statement. This process, which is commonly referred to as “householding,” potentially provides extra convenience for stockholders and cost savings for companies.
If, at any time, you no longer wish to participate in householding and would prefer to receive a separate Proxy Statement, or if you are receiving multiple copies of this Proxy Statement and wish to receive only one, please contact iSun at the address identified below. iSun will promptly deliver, upon oral or written request, a separate copy of this Proxy Statement to any stockholder residing at an address to which only one copy was mailed. Requests for additional copies should be directed, as applicable, to iSun, Inc., 400 Avenue D, Suite 10, Williston, Vermont 05495, Attn: Corporate Secretary, or by contacting iSun by telephone at (802) 658-3378 or by e-mail at mdamato@isunenergy.com.
A number of brokerage firms have instituted householding for shares held in “street name.” If you and members of your household have multiple accounts holding shares of iSun Common Stock, you may have received a householding notification from your broker. Please contact your broker directly if you have questions or require additional copies of this Proxy Statement.
WHERE YOU CAN FIND MORE INFORMATION
iSun files annual, quarterly and special reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy statements and other information about iSun. The address of that site is http://www.sec.gov. The reports and other information filed by iSun with the SEC are also available at its website: www.isunenergy.com. Information on this website is not part of this Proxy Statement.
iSun has supplied all information contained in this Proxy Statement.
Documents are available from iSun, without charge. iSun stockholders may obtain these documents by requesting them in writing or by telephone from the appropriate party at the following addresses and telephone numbers:
iSun, Inc.
Attention: Corporate Secretary
400 Avenue D, Suite 10
Williston, Vermont 05495
(802) 264-2040
mdamato@isunenergy.com
To obtain timely delivery of the documents, you must request them no later than five business days before the date of the applicable Special Meeting. Therefore, if you would like to request documents from iSun, please do so by February 18, 2021 in order to receive them before the iSun Special Meeting.
You should rely only on the information contained in this Proxy Statement to vote on the iSun 2020 Equity Incentive Plan Proposal. iSun has not authorized anyone to provide you with information that is different from what is contained in this Proxy Statement.
If you are in a jurisdiction where offers to exchange or sell, or solicitations of offers to exchange or purchase, the securities offered by this Proxy Statement or solicitations of proxies are unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer presented in this Proxy Statement does not extend to you.
This Proxy Statement is dated January 7, 2021. You should not assume that the information in it is accurate as of any date other than that date or the date of an incorporated document, as applicable, and its mailing to iSun stockholders will create any implication to the contrary.
ANNEX A
iSun, Inc.
2020 EQUITY INCENTIVE PLAN
SECTION 1.
DEFINITIONS
As used herein, the following terms shall have the meanings indicated below:
(a) “Administrator” shall mean the Board of Directors of the Company or one or more Committees appointed bybought out a minority stockholder of Peck Electric Co. The Company advanced $250,000 for the Board of Directors, as the case may be.
(b) “Affiliate(s)” shall mean a Parent or Subsidiary of the Company.
(c) “Agreement” shall mean the written agreement entered into by the Participant and the Company evidencing the grant of an Award. Each Agreement shall be in such form as may be approved from time to time by the Administrator and may vary from Participant to Participant.
(d) “Annual Award Limit” or “Annual Award Limits” shall have the meaning set forth in Section 6(c) of the Plan.
(e) “Award” shall mean any grant pursuant to the Plan of an Incentive Stock Option, Nonqualified Stock Option, Restricted Stock Award, Restricted Stock Unit, Performance Award or Stock Appreciation Right.
(f) “Change of Control” shall mean the occurrence, in a single transaction or in a series of related transactions, of any one or more of the events in subsections (i) through (iv) below. For purposes of this definition, a person, entity or group shall be deemed to “Own,” to have “Owned,” to be the “Owner” of, or to have acquired “Ownership” of securities if such person, entity or group directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares Voting Power, which includes the power to vote or to direct the voting, with respect to such securities.
(i) Any person, entity or group becomes the Owner, directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined Voting Power of the Company's then outstanding securities other than by virtue of a merger, consolidation, exchange, reorganization or similar transaction. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur (A) on account of the acquisition of securities of the Company by an investor, any affiliate thereof or any other person, entity or group from the Company in a transaction or series of related transactions the primary purpose ofstock purchase which is included in the “due from stockholders”. At December 31, 2020 and December 31, 2019, the amounts due of $602,463 and $337,000, respectively, are included in the “due to obtain financing for the Company through the issuance of equity securities or (B) solely because the level of Ownership held by any person, entity or group (the “Subject Person”) exceeds the designated percentage threshold of the Voting Powerstockholders” as a result of a repurchase or other acquisition of voting securities by the Company reducing the number of shares outstanding, provided that if a Change of Control would occur (but for the operation of this sentence) as a result of the acquisition of voting securities by the Company, and after such share acquisition, the Subject Person becomes the Owner of any additional voting securities that, assuming the repurchase or other acquisition had not occurred, increases the percentage of the then outstanding voting securities Owned by the Subject Person over the designated percentage threshold, then a Change of Control shall be deemed to occur;
(ii) There is consummated a merger, consolidation, exchange, reorganization or similar transaction involving (directly or indirectly) the Company and, immediately after the consummation of such merger, consolidation, exchange, reorganization or similar transaction, the shareholders of the Company immediately prior thereto do not Own, directly or indirectly, either (A) outstanding voting securities representing more than fifty percent (50%) of the combined outstanding Voting Power of the surviving entity in such merger, consolidation or similar transaction or (B) more than fifty percent (50%) of the combined outstanding Voting Power of the parent of the surviving entity in such merger, consolidation, exchange, reorganization or similar transaction, in each case in substantially the same proportions as their Ownership of the outstanding voting securities of the Company immediately prior to such transaction;
(iii) There is consummated a sale, lease, exclusive license or other disposition of all or substantially all of the total gross value of the consolidated assets of the Company and its subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the total gross value of the consolidated assets of the Company
and its subsidiaries to an entity, more than fifty percent (50%) of the combined Voting Power of the voting securities of which are Owned by shareholders of the Company in substantially the same proportions as their Ownership of the outstanding voting securities of the Company immediately prior to such sale, lease, license or other disposition (for purposes of this Section 1(f)(iii), “gross value” means the value of the assets of the Company or the value of the assets being disposed of, as the case may be, determined without regard to any liabilities associated with such assets); or
(iv) Individuals who, at the beginning of any consecutive twelve-month period, are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board at any time during that consecutive twelve-month period; provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of the Plan, be considered as a member of the Incumbent Board.
For the avoidance of doubt, the term “Change of Control” shall not include a sale of assets, merger or other transaction effected exclusively for the purpose of changing the domicile of the Company. To the extent required, the determination of whether a Change of Control has occurred shall be made in accordance with Code Section 409A and the regulations, notices and other guidance of general applicability issued thereunder.
(g) “Close of Business” of a specified day shall mean 5:00 p.m., Eastern Time, without regard to whether such daythere is a Saturday, Sunday, bank holiday, or other day on which no business is conducted.right to offset.
(h) “Committee” shall mean a Committee of two or more Directors who shall be appointed by and serve atIn 2019, the pleasure of the Board. To the extent necessary for compliance with Rule 16b-3, each of the members of the Committee shall be a “non-employee director.” Solely for purposes of this Section 1(h), “non-employee director” shall have the same meaning as set forth in Rule 16b-3. Further, to the extent necessary for compliance with the limitations set forth in Internal Revenue Code Section 162(m), each of the members of the Committee shall be an “outside director” within the meaning of Code Section 162(m) and the regulations issued thereunder.
(i) “Common Stock” shall mean the common stock of the Company (subject to adjustment as provided in Section 15 of the Plan).
(j) The “Company” shall mean iSun, Inc., a Delaware corporation.
(k) “Consultant” shall mean any person, including an advisor, who is engaged by the Company or any Affiliate to render consulting or advisory services and is compensated for such services; provided, however, that no person shall be considered a Consultant for purposes of the Plan unless such Consultant is a natural person, renders bona fide servicesCompany’s majority stockholders lent proceeds to the Company or any Affiliate,to help with cash flow needs. At December 31, 2020 and such servicesDecember 31, 2019, the amounts owed of $286,964 and $295,299, respectively, are not in connection with the offer or sale of securities in a capital raising transaction and do not directly or indirectly promote or maintain a market for the Company's securities. For purposes of the Plan, “Consultant” shall also include a director of an Affiliate who is compensated for services as a director.
(l) “Covered Employee” shall mean any key salaried Employee who is or may become a “Covered Employee,” as defined in Code Section 162(m), and who is designated, either as an individual Employee or class of Employees, by the Administrator within the shorter of (i) ninety (90) days after the beginning of the Performance Period, or (ii) twenty-five percent (25%) of the Performance Period has elapsed, as a “Covered Employee” under the Plan for such applicable Performance Period.
(m) “Director” shall mean a member of the Board of Directors of the Company.
(n) “Effective Date” shall mean the date the Board of Directors of the Company approves the amendment and restatement of the Plan.
(o) “Employee” shall mean a common law employee of the Company or any Affiliate, including “officers” as defined by Section 16 of the Exchange Act; provided, however, that service solely as a Director or Consultant, regardless of whether a fee is paid for such service, shall not cause a person to be an Employee for purposes of the Plan.
(p) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
(q) “Fair Market Value” of specified stock as of any date shall mean (i) if such stock is listed on the Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital Market or an established stock exchange, the price of such stock at the close of the regular trading session of such market or exchange on such date, as reported by Bloomberg or a comparable reporting service, or, if no sale of such stock shall have occurred on such date, on the next preceding date on which there was a sale of stock; (ii) if such stock is not so listed on the Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital Market, or an established stock exchange, the average of the closing “bid” and “asked” prices quoted by the OTC Bulletin Board, the National Quotation Bureau, or any comparable reporting service on such date or, if there are no quoted “bid” and “asked” prices on such date, on the next preceding date for which there are such quotes; or (iii) if such stock is not publicly traded as of such date, the per share value as determined by the Board or the Committee in its sole discretion by applying principles of valuation with respect to Common Stock.
(r) “Full Value Award” shall mean an Award that is settled by the issuance of shares of Common Stock, other thanincluded in the form of an Option or Stock Appreciation Right.
(s) “Incentive Stock Option” shall mean an Option granted pursuant“due to Section 9 of the Plan thatstockholders” as there is intendeda right to satisfy the provisions of Code Section 422, or any successor provision.
(t) “Insider” shall mean an individual who is, on the relevant date, an officer or Director of the Company, or an individual who beneficially owns more than ten percent (10%) of any class of equity securities of the Company that is registered under Section 12 of the Exchange Act, as determined by the Board of Directors in accordance with Section 16 of the Exchange Act.
(u) The “Internal Revenue Code” or “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time. References to sections of the Code are intended to include applicable treasury regulations and successor statutes and regulations.
(v) “Option” shall mean an Incentive Stock Option or Nonqualified Stock Option granted pursuant to the Plan.
(w) “Nonqualified Stock Option” shall mean an Option granted pursuant to Section 10 of the Plan or an Option (or portion thereof) that does not qualify as an Incentive Stock Option.
(x) “Parent” shall mean any parent corporation of the Company within the meaning of Code Section 424(e), or any successor provision.
(y) “Participant” shall mean an Employee to whom an Incentive Stock Option has been granted or an Employee, a Director, or a Consultant to whom a Nonqualified Stock Option, Restricted Stock Award, Restricted Stock Unit, Performance Award or Stock Appreciation Right has been granted.
(z) “Performance Award” shall mean any Performance Shares or Performance Units Award granted pursuant to Section 13 of the Plan.
(aa) “Performance-Based Compensation” shall mean compensation under an Award that is intended to satisfy the requirements of Code Section 162(m) for certain performance-based compensation paid to Covered Employees. Notwithstanding the foregoing, nothing in the Plan shall be construed to mean that an Award which does not satisfy the requirements for performance-based compensation under Code Section 162(m) does not constitute performance-based compensation for other purposes, including Code Section 409A.
(bb) “Performance Objective(s)” shall mean one or more performance objectives established by the Administrator, in its sole discretion, for Awards granted under this Plan, including Performance Awards to Covered Employees that are intended to qualify as Performance-Based Compensation. For any Awards that are intended to qualify as “performance-based compensation” under Code Section 162(m), the Performance Objectives shall be limited to any one, or a combination of the following criteria: (i) revenue or net sales, (ii) operating income, (iii) net income (before or after taxes), (iv) earnings per share, (v) earnings before or after taxes, interest, depreciation and/or amortization, (vi) gross profit margin, (vii) return measures (including, but not limited to, return on invested capital, assets, capital, equity, sales), (viii) increase in revenue or net sales, (ix) operating expense ratios, (x) operating expense targets, (xi) productivity ratios, (xii) gross or operating margins, (xiii) cash flow (including, but not limited to, operating cash flow, free cash flow, cash flow return on equity and cash flow return on investment), (xiv) working capital targets, (xv) capital expenditures, (xvi) share
price (including, but not limited to, growth measures and total shareholder return), (xvii) appreciation in the fair market value or book value of the Common Stock, (xviii) debt to equity ratio or debt levels, and (xix) market share, in all cases including, if selected by the Administrator, threshold, target and maximum levels.
(cc) “Performance Period” shall mean the period, established at the time any Award is granted or at any time thereafter, during which any Performance Objectives specified by the Administrator with respect to such Award are to be measured.
(dd) “Performance Share” shall mean any grant pursuant to Section 13 hereof of an Award, which value, if any, shall be paid to a Participant by delivery of shares of Common Stock of the Company upon achievement of such Performance Objectives during the Performance Period as the Administrator shall establish at the time of such grant or thereafter.
(ee) “Performance Unit” shall mean any grant pursuant to Section 13 hereof of an Award, which value, if any, shall be paid to a Participant by delivery of cash upon achievement of such Performance Objectives during the Performance Period as the Administrator shall establish at the time of such grant or thereafter.
(ff) “Plan” means iSun, Inc. 2020 Equity Incentive Plan, as amended hereafter from time to time, including the form of Agreements as they may be modified by the Administrator from time to time.
(gg) “Restricted Stock Award” shall mean any grant of restricted shares of Common Stock pursuant to Section 11 of the Plan.
(hh) “Restricted Stock Unit” shall mean any grant of any restricted stock units pursuant to Section 12 of the Plan.
(ii) “Rule 16b-3” shall mean Rule 16b-3, or any successor provision, as then in effect, of the General Rules and Regulations under the Exchange Act.
(jj) “Stock Appreciation Right” shall mean a grant pursuant to Section 14 of the Plan.
(kk) A “Subsidiary” shall mean any subsidiary corporation of the Company within the meaning of Code Section 424(f), or any successor provision.
(ll) “Voting Power” shall mean any and all classes of securities issued by the applicable entity which are entitled to vote in the election of directors of the applicable entity.
SECTION 2.
PURPOSE
The purpose of the Plan is to promote the success of the Company and its Affiliates by facilitating the employment and retention of competent personnel and by furnishing incentives to those Employees, Directors, and Consultants upon whose efforts the success of the Company and its Affiliates will depend to a large degree. It is the intention of the Company to carry out the Plan through the granting of Incentive Stock Options, Nonqualified Stock Options, Restricted Stock Awards, Restricted Stock Units, Performance Awards and Stock Appreciation Rights.
SECTION 3.
EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall be effective on the Effective Date; provided, however, that adoption of the Plan shall be and is expressly subject to the condition of approval by the shareholders of the Company within twelve (12) months before or after the Effective Date. However, Awards may be granted prior to the date the Plan is approved by the shareholders of the Company; provided that any Incentive Stock Options granted after the Effective Date shall be treated as Nonqualified Stock Options if shareholder approval is not obtained within such twelve-month period.
The Administrator may grant Awards pursuant to the Plan from time to time until the Administrator discontinues or terminates the Plan; provided, however, that in no event may Incentive Stock Options be granted pursuant to the Plan after the earlier of (i) the date the Administrator discontinues or terminates the Plan, or (ii) the Close of Business on the day immediately preceding the tenth anniversary of the Effective Date.
SECTION 4.
ADMINISTRATION
(a) Administration by the Board of Directors or Committee(s). The Plan shall be administered by the Board of Directors of the Company (hereinafter referred to as the “Board”); provided, however, that the Board may delegate some or all of the administration of the Plan to a Committee or Committees. The Board and any Committee appointed by the Board to administer the Plan are collectively referred to in the Plan as the “Administrator.“
(b) Delegation by Administrator. The Administrator may delegate to one or more Committees and/or sub-Committees, or to one or more officers of the Company and/or its Affiliates, or to one or more agents and/or advisors, such administrative duties or powers as it may deem advisable. The Administrator or any Committees or individuals to whom it has delegated duties or powers as aforesaid may employ one or more individuals to render advice with respect to any responsibility of the Administrator or such Committees or individuals may have under the Plan. The Administrator may, by resolution, authorize one or more officers of the Company to do one or both of the following on the same basis as can the Administrator: (i) designate Employees to be recipients of Awards and (ii) determine the size of any such Awards; provided, however, (x) the Committee shall not delegate such responsibilities to any such officer for Awards granted to an Employee who is considered an Insider; (y) the resolution providing such authorization sets forth the total number of Awards such officer(s) may grant; and (z) the officer(s) shall report periodically to the Administrator regarding the nature and scope of the Awards granted pursuant to the authority delegated.
(c) Powers of Administrator. Except as otherwise provided herein, the Administrator shall have all of the powers vested in it under the provisions of the Plan, including but not limited to exclusive authority to determine, in its sole discretion, whether an Award shall be granted; the individuals to whom, and the time or times at which, Awards shall be granted; the number of shares subject to each Award; the exercise price of Options granted hereunder; and the performance criteria, if any, and any other terms and conditions of each Award. The Administrator shall have full power and authority to administer and interpret the Plan, to make and amend rules, regulations and guidelines for administering the Plan, to prescribe the form and conditions of the respective Agreements evidencing each Award (which may vary from Participant to Participant), to amend or revise Agreements evidencing any Award (to the extent the amended terms would be permitted by the Plan and provided that no such revision or amendment, except as is authorized in Section 15, shall impair the terms and conditions of any Award which is outstanding on the date of such revision or amendment to the material detriment of the Participant in the absence of the consent of the Participant), and to make all other determinations necessary or advisable for the administration of the Plan (including to correct any defect, omission or inconsistency in the Plan or any Agreement, to the extent permitted by law and the Plan). The Administrator's interpretation of the Plan, and all actions taken and determinations made by the Administrator pursuant to the power vested in it hereunder, shall be conclusive and binding on all parties concerned.
(d) Limitation on Liability; Actions of Committees. No member of the Board or a Committee shall be liable for any action taken or determination made in good faith in connection with the administration of the Plan. In the event the Board appoints a Committee as provided hereunder, or the Administrator delegates any of its duties to another Committee or sub-Committee, any action of such Committee with respect to the administration of the Plan shall be taken pursuant to a majority vote of the Committee members or pursuant to the written resolution of all Committee members.
SECTION 5.
PARTICIPANTS
The Administrator may grant Awards under the Plan to any Employee, Director, or Consultant; provided, however, that only Employees are eligible to receive Incentive Stock Options. In designating Participants, the Administrator shall also determine the number of shares or cash units to be optioned or awarded to each such Participant and any Performance Objectives applicable to Awards. The Administrator may from time to time designate individuals as being ineligible to participate in the Plan. The power of the Administrator under this Section 5 shall be exercised from time to time in the sole discretion of the Administrator and without approval by the shareholders.offset
SECTION 6.
STOCK
(a) Number of Shares Reserved. The stock to be awarded or optioned underCompany was an S-corporation through June 20, 2019 and as a result, the Plan (the “Share Authorization”) shall consist of authorized but unissued or reacquired shares of Common Stock. Subject to Section 15 of the Plan, the maximum aggregate number of shares of Common Stock reserved and available for Awards under the Plan is 1,000,000 shares of Company Common Stock; provided, however, that all shares of Common Stock reserved and available under the Plan shall constitute the maximum aggregate number of shares of Stock that may be issued through Incentive Stock Options.
(b) Share Usage. The following shares of Common Stock shall not reduce the Share Authorization and shall continue to be reserved and available for Awards granted pursuant to the Plan: (i) all or any portion of any outstanding Restricted Stock Award or Restricted Stock Unit that expires or is forfeited for any reason, or that is terminated prior to the vesting or lapsing of the risks of forfeiture on such Award, and (ii) shares of Common Stock covered by an Award to the extent the Award is settled in cash; provided, however, that the full number of shares of Common Stock subject to a Stock Appreciation Right shall reduce the Share Authorization, whether such Stock Appreciation Right is settled in cash or shares of Common Stock. Any shares of Common Stock withheld to satisfy tax withholding obligations on an Award, shares of Common Stock withheld to pay the exercise price of an Option, and shares of Common Stock subject to a broker-assisted cashless exercise of an Option shall reduce the Share Authorization.
(c) Annual Award Limits. Unless and until the Administrator determines that an Award to a Covered Employee shall not be Performance-Based Compensation, the following limits (each, an “Annual Award Limit,” and collectively, “Annual Award Limits”) shall apply to grants of such Awards under the Plan:
(i) Options and Stock Appreciation Rights. The maximum number of shares of Common Stock subject to Options granted and shares of Common Stock subject to Stock Appreciation Rights granted in any one calendar year to any one Participant shall be, in the aggregate, 200,000 shares, subject to adjustment as provided in Section 15.
(ii) Restricted Stock Awards and Restricted Stock Units. The maximum grant with respect Restricted Stock Awards and Restricted Stock Units in any one calendar year to any one Participant shall be, in the aggregate, 100,000 shares, subject to adjustment as provided in Section 15.
SECTION 7.
PERFORMANCE OBJECTIVES
(a) Performance Objectives. Any Performance Objective may be used to measure the performancetaxable income of the Company and/or Affiliate, asis reported on the owner’s tax returns and they are taxed individually. As a whole orresult, the Company has accrued a distribution for taxes of $266,814 at December 31, 2020 and December 31, 2019, respectively, to the owners of Peck Electric Co. for the period during which the Company was an S-corporation, which is included in the “due to stockholders” value below.
Communications with respect to any business unit,the Board of Directors on Corporate Governance and Related Matters Stockholders and other parties may communicate directly with the Board or any combination thereofrelevant director by addressing communications to: | | | iSun, Inc. | | | | | | | 400 Avenue D, Suite 10 | | | | | | | Williston, VT 05495 | | | |
All stockholder correspondence will be compiled and forwarded as the Administrator may deem appropriate, or any of the specified Performance Objectives as compared to the performance of a group of competitor companies, or published or special index that the Administrator, in its sole discretion, deems appropriate. The Administrator also has the authority to provide for accelerated vesting of any Award based on the achievement of performance goals pursuant to the Performance Objectives; provided, however, that such authority shall be subject to Code Section 162(m) with respect to Awards intended to qualify as Performance-Based Compensation. (b) Evaluation of Performance Objectives. The Administrator may provide in any Award based on Performance Objectives that any evaluation of performance may include or exclude any of the following events that occurs during a Performance Period: (i) asset write-downs, (ii) litigation or claim judgments or settlements, (iii) the effect of changes in tax laws, accounting principles, or other laws or provisions affecting reported results, (iv) any reorganization and restructuring programs, (v) extraordinary nonrecurring items as described in FASB Accounting Standards Codification 225-20—Extraordinary and Unusual Items and/or in Management's Discussion and Analysis of financial condition and results of operations appearing in the Company's annual report to shareholders for the applicable year, (vi) acquisitions or divestitures, and (vii) foreign exchange gains and losses. To the extent such inclusions or exclusions affect Awards to Covered Employees, they shall be prescribed in a form that meets the requirements of Code Section 162(m) for deductibility.
(c) AdjustmentPROPOSAL 1:
TO ELECT TWO (2) DIRECTORS TO SERVE UNTIL THE 2023 ANNUAL MEETING OF
STOCKHOLDERS AND UNTIL EACH OF THEIR SUCCESSORS IS DULY ELECTED AND QUALIFIED At the Meeting, two (2) people are to be elected to the Board. Each of Performance-Basedthese directors will serve a three-year term as provided in the Company’s Second Amended and Restated Certificate of Incorporation and until a successor is elected and qualified. Each nominee currently serves on the Board. Each nominee has consented to serve if elected. We expect that each nominee will be available for election, but if he is not a candidate at the time the election occurs, such proxy will be voted for the election of another nominee to be designated by the Board to fill any such vacancy. The term of office of each person elected as a director, and the term of each person’s appointments to the Board’s Nominating and Corporate Governance Committee, Audit Committee, and Compensation. Awards that Committee, will continue until our 2023 Annual Meeting or until each of their successors has been elected and qualified, or until the director’s death, resignation or removal. Biographical and certain other information concerning each nominee for election to the Board is set forth below. Except as indicated below, neither director nominee is a director of any other reporting companies. We are intendednot aware of any proceedings to qualify as Performance-Based Compensation may not be adjusted upward. The Administrator shall retain the discretion to adjust such Awards downward,which either on a formula or discretionary basisdirector nominee, or any combination, as the Administrator determines. (d) Administrator Discretion. In the event that applicable tax and/or securities laws change to permit Administrator discretion to alter the governing Performance Objectives without obtaining shareholder approvalassociate of such changes, the Administrator shall have sole discretiondirector is a party adverse to make such changes without obtaining shareholder approval. In addition, in the event that the Administrator determines that it is advisableus or any of our subsidiaries or has a material interest adverse to grant Awards that shall not qualify as Performance-Based Compensation, the Administrator may make such grants without satisfying the requirementsus or any of Code Section 162(m) and, in such case, may apply performance objectives other than those set forth in this Section 7.our subsidiaries.
SECTION 8.
Board Nominees
Daniel Dus | | | 42 | Stewart Martin | | | 56 |
Background of Nominees PAYMENT OF OPTION EXERCISE PRICE
Upon the exercise of an Option, Participants may pay the exercise price of an Option (i) in cash, or with a personal check, certified check, or other cash equivalent, (ii) by the surrender by the ParticipantDaniel Dus was appointed to the CompanyBoard of previously acquired unencumbered shares of Common Stock (through physical delivery or attestation), (iii) through the withholding of shares of Common Stock from the number of shares otherwise issuable upon the exercise of the Option (e.g., a net share settlement), (iv) through broker-assisted cashless exercise if such exercise complies with applicable securities laws and any insider trading policyDirectors of the Company (v) such other formin September 2019. Mr. Dus has served as the Head of paymentRenewables Business, North America since July 2017 for Adani Solar USA, Inc., an affiliate of Adani Group, which is an integrated business conglomerate in India that consists of six publicly traded companies. In this role, Mr. Dus managed the construction of 453 megawatts in solar projects and developed a 1.8 gigawatt pipeline of solar projects for Adani Group in the U.S. From November 2015 to July 2017, Mr. Dus served as may be authorizedthe chief development officer for Dynamic Energy Solutions, LLC, a full-service solar energy provider where Mr. Dus was responsible for new market entry, with a focus on greenfield development, community solar and shared renewables. From August 2013 to November 2015, Mr. Dus served as the chief strategy officer for Safari Energy, LLC, a solar power provider focused on serving real estate investment trusts, where Mr. Dus was responsible for business and project development process creation, integration, training and improvement. Prior to that, Mr. Dus served as the chief operations officer and the chief financial officer from September 2008 to August 2013 for Martifer Solar, S.A., a global solar photovoltaic power developer and engineering, construction and procurement, and operations and maintenance provider. At Martifer Solar, S.A., Mr. Dus was responsible for over 1,200 solar clients serviced under leases, power purchase agreements, direct purchase and community solar models, for managing a solar services platform that engaged 75 full time staff members and over 1,000 subcontracted laborers, and for obtaining corporate investment facilities and bonding facilities. Mr. Dus holds a Master of Business Administration from Drexel University and is a certified solar designer, Stanford-certified project manager, Villanova-certified Six Sigma Master Lean Blackbelt, and holds over fifty certificates in energy hedging, grid infrastructure and emerging energy technologies, as well as an OSHA 30. Mr. Dus owns the first property in the world ever powered by the Administrator, or (vi) by a combination thereof. In the event the Participant electsalternating current electricity. Mr. Dus is well qualified to pay the exercise price, in whole or in part, with previously acquired shares of Common Stock or through a net share settlement, the then-current Fair Market Value of the stock delivered or withheld shall equal the total exercise price for the shares being purchased in such manner.serve as independent director due to his extensive industry and management experience.
The Administrator may, in its sole discretion, limit the forms of payment availableStewart Martin was appointed to the Participant and may exercise such discretion any time prior to the terminationBoard of the Option granted to the Participant or upon any exercise of the Option by the Participant. “Previously acquired shares of Common Stock” means shares of Common Stock which the Participant owns on the date of exercise (or for the period of time, if any, as may be required by generally accepted accounting principles or any successor principles applicable to the Company).
With respect to payment in the form of Common Stock, the Administrator may require advance approval or adopt such rules as it deems necessary to assure compliance with Rule 16b-3, if applicable.
SECTION 9.
TERMS AND CONDITIONS OF INCENTIVE STOCK OPTIONS
Each Incentive Stock Option shall be evidenced by an Incentive Stock Option Agreement, which shall comply with and be subject to the following terms and conditions:
(a) Number of Shares and Exercise Price. The Incentive Stock Option Agreement shall state the total number of shares covered by the Incentive Stock Option. Except as permitted by Code Section 424(a), or any successor provision, the exercise price per share shall not be less than one hundred percent (100%) of the per share Fair Market Value of the Common Stock on the date the Administrator grants the Incentive Stock Option; provided, however, that if a Participant owns stock possessing more than ten percent (10%) of the total combined Voting Power of all classes of stockDirectors of the Company or of its Parent or any Subsidiary,upon the exercise price per share of an Incentive Stock Option granted to such Participant shall not be less than one hundred ten percent (110%)consummation of the per share Fair Market ValueCompany’s Reverse Merger and Recapitalization with Jensyn Acquisition Corp., and previously served as a member of Common Stock on the dateJensyn’s Board of Directors since November 2016. Since August 2013, he has served as Executive Vice President, Sales and Producer Development of Marsh & McLennan Agencies – Florida, a subsidiary of Marsh & McLennan Companies. He previously served as Senior Vice President and a member of the grantBoard of the Incentive Stock Option. The Administrator shall have full authorityDirectors of Seitlin Insurance and discretionAdvisors, which was acquired by Marsh & McLennan, LLC in establishing the exercise priceNovember 2011. Mr. Martin is well qualified to serve as independent director due to his substantial management and shall be fully protected in so doing.
(b) Exercisability and Term. The Incentive Stock Option Agreement shall state when the Incentive Stock Option becomes exercisable (i.e.previous board experience. “vests”), and, if applicable in the Administrator's discretion, shall describe the Performance Objectives and Performance Period upon which vesting is based, the manner in which performance shall be measured and the extent to which partial achievement of the Performance Objectives may result in vesting of the Option. The Participant may exercise the Incentive Stock Option, in full or in part, upon or after the vesting date of such Option (or portion thereof). Notwithstanding anything in the Plan or the Agreement to
Director Independence Our Board of Directors has determined that each of Messrs. Dus and Martin is “independent,” as defined by SEC rules adopted pursuant to the contrary, the Participant may not exercise an Incentive Stock Option after the maximum term of such Option, as such term is specified in the Incentive Stock Option Agreement. Except as permitted by Code Section 424(a), in no event shall any Incentive Stock Option be exercisable during a term of more than ten (10) years after the date on which it is granted; provided, however, that if a Participant owns stock possessing more than ten percent (10%)requirements of the total combined Voting PowerSarbanes-Oxley Act of all classes of stock2002 and as determined in accordance with Rule 4200(a)(15) of the Company or of its Parent or any Subsidiary, the Incentive Stock Option granted to such Participant shall be exercisable during a term of not more than five (5) years after the date on which it is granted. The Administrator may accelerate the exercisability of any Incentive Stock Option granted hereunder which is not immediately exercisable asMarketplace Rules of the dateNasdaq Stock Market, Inc. Each of grant. (c) No Rights as Shareholder. A Participant (orMessrs. Dus and Martin will receive the Participant's successors) shall have no rights as a shareholder with respectstandard compensation amounts payable to any shares covered by an Incentive Stock Option until the datenon-employee directors of the issuance of the Common Stock subjectBoard. Pursuant to such Award upon exercise, as evidenced by a stock certificate or as reflectedthese arrangements, each will be paid (i) an annual retainer in the books and records of the Company or its designated agent (i.e., a “book entry”). No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property), distributions or other rights for which the record date is prior to the date such shares are actually issued (as evidenced in either certificated or book entry form).
(d) Withholding. The Company or its Affiliate shall be entitled to withhold and deduct from any future payments to the Participant all legally required amounts necessary to satisfy any and all withholding and employment-related taxes attributable to the Participant's exercise of an Incentive Stock Option or a “disqualifying disposition” of shares acquired through the exercise of an Incentive Stock Option as defined in Code Section 421(b), to require the Participant to remit an amount sufficient to satisfy such withholding requirements, or to require any combination thereof. In the event the Participant is required under the Incentive Stock Option Agreement to pay the Company, or make arrangements satisfactory to the Company respecting payment of, such withholding and employment-related taxes, the Administrator may, in its sole discretion, require the Participant to satisfy such obligation, in whole or in part, by delivering shares of Common Stock or by electing to have the Company withhold shares of Common Stock otherwise issuable to the Participant as a result of the exercise of the Incentive Stock Option. Such shares shall have a Fair Market Value equal to the minimum required tax withholding, based on the minimum statutory withholding rates for federal and state tax purposes, including payroll taxes, that are applicable to the supplemental income resulting from such exercise or disqualifying disposition. In no event may the Participant deliver shares, nor may the Company or any Affiliate withhold shares, having a Fair Market Value in excess of such statutory minimum required tax withholding. The Participant's delivery of shares or the withholding of shares for this purpose shall occur on or before the later of (i) the date the Incentive Stock Option is exercised or the date of the disqualifying disposition, as the case may be, or (ii) the date that the amount of tax$36,000 for Board membership, inclusive of all Board meetings and committee meetings; (ii) an annual retainer in the amount of $10,000 for service as a Committee chair; and (iii) a one-time grant of 3,000 shares of iSun Common Stock to vest proportionally over each Director’s term.
Required Vote The Director nominees will be withheld is determined under applicable tax law. (e) Vesting Limitation. Notwithstanding any other provisionelected by a plurality of the Plan, the aggregate Fair Market Value (determined as of the date an Incentive Stock Option is granted) ofvotes represented by the shares of Common Stock with respect to which Incentive Stock Options are exercisable forpresent at the first timeMeeting virtually or by a Participant during any calendar year (under the Plan and any other “incentive stock option” plans of the Company or any Affiliate shall not exceed $100,000 (or such other amount as may be prescribed by the Code from time to time); provided, however, that if the exercisability or vesting of an Incentive Stock Option is accelerated as permitted under the provisions of the Plan and such acceleration would result in a violation of the limit imposed by this Section 9(e), such acceleration shall be of full force and effect but the number of shares of Common Stock that exceed such limit shall be treated as having been granted pursuant to a Nonqualified Stock Option; and provided, further, that the limits imposed by this Section 9(e) shall be applied to all outstanding Incentive Stock Options under the Plan and any other “incentive stock option” plans of the Company or any Affiliate in chronological order according to the dates of grant.proxy.
(f) Other Provisions. The Incentive Stock Option Agreement authorized under this Section 9 shall contain such other provisions as the Administrator shall deem advisable. Any such Incentive Stock Option Agreement shall contain such limitations and restrictions upon the exercise of the Incentive Stock Option as shall be necessary to ensure that such Incentive Stock Option will be considered an “incentive stock option” as defined in Code Section 422 or to conform to any change therein.RECOMMENDATION OF THE BOARD FOR PROPOSAL NO. 1:
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR STOCKHOLDERS VOTE “FOR” THE ELECTION OF THE NOMINEES NAMED ABOVE. SECTION 10.PROPOSAL 2:
RATIFICATION OF THE APPOINTMENT OF MARCUM LLP
TERMS AND CONDITIONS OF NONQUALIFIED STOCK OPTIONS
Each Nonqualified Stock Option shall be evidenced byAS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2019 The Company’s stockholders are being asked to ratify the Board’s appointment of Marcum LLP as our independent registered public accounting firm for fiscal year ended December 31, 2019. Marcum LLP has provided services in connection our financial statements since October 8, 2019. The Company’s organizational documents do not require that the stockholders ratify the selection of Marcum LLP as our independent registered public accounting firm, and stockholder ratification is not binding on the Company, the Board or the Audit Committee. We request such ratification, however, as a Nonqualified Stock Option Agreement, which shall comply withmatter of good corporate practice. Our Board, including our Audit Committee, values the opinions of our stockholders and, be subject to the following terms and conditions: (a) Number of Shares and Exercise Price. The Nonqualified Stock Option Agreement shall stateextent there is any significant vote against the total number of shares covered by the Nonqualified Stock Option. The exercise price per share shall be equal to one hundred percent (100%)ratification of the per share Fair Market Valueselection of Marcum LLP as disclosed in this Proxy Statement, we will consider our stockholders’ concerns and evaluate what actions may be appropriate to address those concerns, although the Common Stock on the date of grant of the Nonqualified Stock Option, or such higher price as the Administrator determines.
(b) Exercisability and Term. The Nonqualified Stock Option Agreement shall state when the Nonqualified Stock Option becomes exercisable (i.e. “vests”) and, if applicableAudit Committee, in the Administrator'sits discretion, shall describe the Performance Objectives and Performance Period upon which vesting is based, the manner in which performance shall be measured and the extent to which partial achievement of the Performance Objectives may result in vesting of the Option. The Participant may exercise the Nonqualified Stock Option, in full or in part, upon or after the vesting date of such Option (or portion thereof); provided, however, that the Participant may not exercise a Nonqualified Stock Option after the maximum term of such Option, as such term is specified in the Nonqualified Stock Option Agreement. Unless otherwise determined by the Administrator and specified in the Agreement governing the Award, no Nonqualified Stock Option shall be exercisable during a term of more than ten (10) years after the date on which it is granted. The Administrator may accelerate the exercisability of any Nonqualified Stock Option granted hereunder which is not immediately exercisable as of the date of grant.
(c) No Rights as Shareholder. A Participant (or the Participant's successors) shall have no rights as a shareholder with respect to any shares covered by a Nonqualified Stock Option until the date of the issuance of the Common Stock subject to such Award upon exercise, as evidenced by a stock certificate or as reflected in the books and records of the Company or its designated agent (i.e., a “book entry”). No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property), distributions or other rights for which the record date is prior to the date such shares are actually issued (as evidenced in either certificated or book entry form).
(d) Withholding. The Company or its Affiliate shall be entitled to withhold and deduct from any future payments to the Participant all legally required amounts necessary to satisfy any and all withholding and employment-related taxes attributable to the Participant's exercise of a Nonqualified Stock Option, to require the Participant to remit an amount sufficient to satisfy such withholding requirements, or to require any combination thereof.still retain Marcum LLP. In the event that the Participantratification of this selection is required under the Nonqualified Stock Option Agreement to pay the Company, or make arrangements satisfactory to the Company respecting payment of, such withholding and employment-related taxes, the Administrator may, in its sole discretion, require the Participant to satisfy such obligation, in whole or in part,not approved by delivering shares of Common Stock or by electing to have the Company withhold shares of Common Stock otherwise issuable to the Participant as a resultan affirmative majority of the exercise of the Nonqualified Stock Option. Such shares shall have a Fair Market Value equal to the minimum required tax withholding, basedvotes cast on the minimum statutory withholding ratesproposal at the Annual Meeting, management will review its future selection of our independent registered public accounting firm.
Principal Accounting Fees and Services Audit Fees The following table presents fees billed for federal and state tax purposes, including payroll taxes, that are applicable toprofessional services rendered by Marcum LLP for the supplemental income resulting from such exercise. In no event mayyear ended December 31: Audit Fees(1) | | | $281,859 | | | $93,565 | Tax Fees | | | — | | | — | All Other Fees | | | — | | | — | Total | | | $281,859 | | | $93,565 |
(1)
| Audit fees for the audit of the consolidated financial statements for the year ended December 31, 2020 and review of the financial statements in the Company’s Form 10-Q for the year ended December 31, 2020. |
The following table presents fees billed for professional services rendered by McSoley McCoy & Co for the Participant deliver shares, nor mayyear ended December 31: Audit Fees(2) | | | $— | | | $— | Tax Fees | | | — | | | — | All Other Fees | | | 8,975 | | | — | Total | | | $8,975 | | | $— |
(2)
| Audit fees for the audit of the consolidated financial statements for the year ended December 31, 2019. |
The following table presents fees billed for professional services rendered by CohnReznick LLP for the Company or any Affiliate withhold shares, having a Fair Market Value in excess of such statutory minimum required tax withholding. The Participant's delivery of shares or the withholding of shares for this purpose shall occur on or before the later of (i) the date the Nonqualified Stock Option is exercised, or (ii) the date that the amount of tax to be withheld is determined under applicable tax law.year ended December 31: Audit Fees | | | $— | | | $— | Tax Fees | | | — | | | — | All Other Fees(3) | | | — | | | 7,500 | Total | | | $— | | | $7,500 |
(e) Other Provisions. The Nonqualified Stock Option Agreement authorized under this Section 10 shall contain such other provisions as the Administrator shall deem advisable.SECTION 11.
RESTRICTED STOCK AWARDS
Each Restricted Stock Award shall be evidenced by a Restricted Stock Award Agreement, which shall comply with and be subject to the following terms and conditions:
(a) Number of Shares. The Restricted Stock Award Agreement shall state the total number of shares of Common Stock covered by the Restricted Stock Award.
(3)
| Fees for the consent to utilize opinion in the Company’s Form 10-Q for the quarter ended June 30, 2019 and September 30, 2019. |
(b) RisksPre-Approval Policies and Procedures of Forfeiture. Audit and Non-Audit Services of Independent Registered Public Accounting Firm
The Restricted Stock Award Agreement shall set forthAudit Committee’s policy is to pre-approve, typically at the risksbeginning of forfeiture,our fiscal year, all audit and non-audit services, other than de minimis non-audit services, to be provided by an independent registered public accounting firm. These services may include, among others, audit services, audit-related services, tax services and other services and such services are generally subject to a specific budget. The independent registered public accounting firm and management are required to periodically report to the full Board of Directors regarding the extent of services provided by the independent registered public accounting firm in accordance with this pre-approval, and the fees for the services performed to date. As part of the Board’s review, the Board will evaluate other known potential engagements of the independent auditor, including the scope of work proposed to be performed and the proposed fees, and approve or reject each service, taking into account whether the services are permissible under applicable law and the possible impact of each non-audit service on the independent auditor’s independence from management. At Audit Committee meetings throughout the year, the auditor and management may present subsequent services for approval. Typically, these would be services such as due diligence for an acquisition, that would not have been known at the beginning of the year. The Audit Committee has considered the provision of non-audit services provided by our independent registered public accounting firm to be compatible with maintaining their independence. The audit committee will continue to approve all audit and permissible non-audit services provided by our independent registered public accounting firm. A representative of Marcum LLP is expected to attend virtually at the 2020 Annual Meeting and will have an opportunity to make a statement if any, which shall applyhe or she desires to do so. It is also expected that such representative will be available to respond to appropriate questions. Required Vote The affirmative vote of the holders of a majority of the shares of Common Stock coveredpresent virtually or represented by proxy at the Restricted Stock AwardMeeting and the manner in which such risks of forfeiture shall lapse, including, if applicable in the Administrator's discretion, a description of the Performance Objectives and Performance Period upon which the lapse of risks of forfeiture is based, the manner in which performance shall be measured and the extent to which partial achievement of the Performance Objectives may result in lapse of risks of forfeiture. The Administrator may, in its sole discretion, modify the manner in which such risks of forfeiture shall lapse but only with respect to those shares of Common Stock which are restricted as of the effective date of the modification. (c) Issuance of Shares; Rights as Shareholder. Except as provided below, the Company shall cause a stock certificate to be issued and shall deliver such certificate to the Participant or hold such certificate in a manner determined by the Administrator in its sole discretion; provided, however, that in lieu of a stock certificate, the Company may evidence the issuance of shares by a book entry in the records of the Company or its designated agent (if permitted by the Company's designated agent and applicable law, as determined by the Administrator in its sole discretion). The Company shall cause a legend or notation to be placed on such certificate or book entry describing the risks of forfeiture and other transfer restrictions set forth in the Participant's Restricted Stock Award Agreement and providing for the cancellation and, if applicable, return of such certificate or book entry if the shares of Common Stock subject to the Restricted Stock Award are forfeited. Until the risks of forfeiture have lapsed or the shares subject to such Restricted Stock Award have been forfeited, the Participant shall be entitled to vote the shares of Common Stock represented by such stock certificates and shall receive all dividends attributable to such shares, but the Participant shall not have any other rights as a shareholder with respect to such shares.
(d) Withholding Taxes. The Company or its Affiliate shall be entitled to withhold and deduct from any future payments to the Participant all legally required amounts necessary to satisfy any and all withholding and employment-related taxes attributable to the Participant's Restricted Stock Award, to require the Participant to remit an amount sufficient to satisfy such withholding requirements, or to require any combination thereof. In the event the Participant is required under the Restricted Stock Award Agreement to pay the Company, or make arrangements satisfactory to the Company respecting payment of, such withholding and employment-related taxes, the Administrator may, in its sole discretion, require the Participant to satisfy such obligations, in whole or in part, by delivering shares of Common Stock, including shares of Common Stock received pursuant to the Restricted Stock Award on which the risks of forfeiture have lapsed. Such shares shall have a Fair Market Value equal to the minimum required tax withholding, based on the minimum statutory withholding ratesmatter is needed to ratify the appointment of Marcum LLP as our independent registered public accounting firm for federal and state tax purposes, including payroll taxes, that are applicable to the supplemental income resulting from the lapsing of the risks of forfeiture on such Restricted Stock Award. In no event may the Participant deliver shares having a Fair Market Value in excess of such statutory minimum required tax withholding. The Participant's delivery of shares shall occur on or before the date that the amount of tax to be withheld is determined under applicable tax law.year ended December 31, 2019.
(e) Other Provisions. The Restricted Stock Award Agreement authorized under this Section 11 shall contain such other provisions as the Administrator shall deem advisable.RECOMMENDATION OF THE BOARD FOR PROPOSAL NO. 2:
SECTION 12.
RESTRICTED STOCK UNITS
Each Restricted Stock Unit shall be evidenced by a Restricted Stock Unit Agreement, which shall comply with and be subject to the following terms and conditions:
(a) Number of Shares. The Restricted Stock Unit Agreement shall state the total number of shares of Common Stock covered by the Restricted Stock Unit.
(b) Vesting. The Restricted Stock Unit Agreement shall set forth the vesting conditions, if any, which shall apply to the Restricted Stock Unit and the manner in which such vesting may occur, including, if applicable in the Administrator's discretion, a description of the Performance Objectives and Performance Period upon which vesting is based, the manner in which performance shall be measured and the extent to which partial achievement of the Performance Objectives may result in vesting of the Restricted Stock Unit. The Administrator may, in its sole discretion, accelerate the vesting of any Restricted Stock Unit.
(c) Issuance of Shares; Rights as Shareholder. The Participant shall be entitled to payment of the Restricted Stock Unit as the units subject to such Award vest. The Administrator may, in its sole discretion, payTHE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR STOCKHOLDERS VOTE “FOR” THE RATIFICATION OF THE APPOINTMENT OF MARCUM LLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDED DECEMBER 31, 2019.
Restricted Stock Units in shares of Common Stock, cash in an amount equal to the Fair Market Value, on the date of payment,AUDIT COMMITTEE REPORT
The Report of the number of shares of Common Stock underlyingCompany’s Audit Committee for the Award that have vested on the applicable payment date, or any combination thereof,year ended December 31, 2019 is attached as specified in the Restricted Stock Unit Agreement. If payment is made in shares of Common Stock, the Administrator shall cause to be issued one or more stock certificates in the Participant's name and shall deliver such certificates to the Participant in satisfaction of such units; provided, however, that in lieu of stock certificates, the Company may evidence such shares by a book entry in the records of the Company or its designated agent (if permitted by the Company's designated agent and applicable law, as determined by the Administrator in its sole discretion). Until the units subject to the Restricted Stock Unit have vested, the Participant shall not be entitled to vote any shares of Common Stock which may be acquired through the Award, shall not receive any dividends attributable to such shares, and shall not have any other rights as a shareholder with respect to such shares. (d) Withholding Taxes. The Company or its Affiliate shall be entitled to withhold and deduct from any future payments to the Participant all legally required amounts necessary to satisfy any and all withholding and employment-related taxes attributable to the Participant's Restricted Stock Unit, to require the Participant to remit an amount sufficient to satisfy such withholding requirements, or to require any combination thereof. In the event the Participant is required under the Restricted Stock Unit Agreement to pay the Company, or make arrangements satisfactory to the Company respecting payment of, such withholding and employment-related taxes, the Administrator may, in its sole discretion, require the Participant to satisfy such obligations, in whole or in part, by delivering shares of Common Stock, including shares of Common Stock received pursuant to the Restricted Stock Unit. Such shares shall have a Fair Market Value equal to the minimum required tax withholding, based on the minimum statutory withholding rates for federal and state tax purposes, including payroll taxes, that are applicable to the supplemental income resulting from the payment of such Restricted Stock Unit. In no event may the Participant deliver shares having a Fair Market Value in excess of such statutory minimum required tax withholding. The Participant's delivery of shares for this purpose shall occur on or before the date that the amount of tax to be withheld is determined under applicable tax law.
(e) Other Provisions. The Restricted Stock Unit Agreement authorized under this Section 12 shall contain such other provisions as the Administrator shall deem advisable.
SECTION 13.
PERFORMANCE AWARDS
Each Performance Award granted pursuant to this Section 13 shall be evidenced by a written performance award agreement (the “Performance Award Agreement”). The Performance Award Agreement shall be in such form as may be approved from time to time by the Administrator and may vary from Participant to Participant; provided, however, that each Participant and each Performance Award Agreement shall comply with and be subject to the following terms and conditions:
(a) Awards. Performance Awards in the form of Performance Units or Performance Shares may be granted to any Participant in the Plan. Performance Units shall consist of monetary awards which may be earned or become vested in whole or in part if the Company or the Participant achieves certain Performance Objectives established by the Administrator over a specified Performance Period. Performance Shares shall consist of shares of Stock or other Awards denominated in shares of Stock that may be earned or become vested in whole or in part if the Company or the Participant achieves certain Performance Objectives established by the Administrator over a specified Performance Period.
(b) Performance Objectives, Performance Period and Payment. The Performance Award Agreement shall set forth:
(i) the number of Performance Units or Performance Shares subject to the Performance Award, and the dollar value of each Performance Unit;
(ii) one or more Performance Objectives established by the Administrator;
(iii) the Performance Period over which Performance Units or Performance Shares may be earned or may become vested;
(iv) the extent to which partial achievement of the Performance Objectives may result in a payment or vesting of the Performance Award, as determined by the Administrator; andAppendix A-1
(v)PROPOSAL 3:
TO APPROVE AN AMENDMENT TO THE COMPANY’S SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO REDUCE THE PERCENTAGE OF OUTSTANDING SHARES REQUIRED TO APPROVE AN AMENDMENT TO THE CERTIFICATE OF INCORPORATION FROM 66.667% TO A SIMPLE MAJORITY, AS SET FORTH IN THE COMPANY’S PROPOSED THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION The complete text of the date upon which paymentCompany’s Third Amended and Restated Certificate of Performance UnitsIncorporation is attached as Appendix A-2 THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION General The Board has recommended that the stockholders approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to reduce the percentage of outstanding shares required to approve an Amendment to the Certificate of Incorporation from 66.667% to a simple majority, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation. Purpose of the Amendment and Restatement The Board believes it is in the best interests of the Company to amend the Company’s Second Amended and Restated Certificate of Incorporation to reduce the percentage of outstanding shares required to approve an Amendment to the Certificate of Incorporation from 66.667% to a simple majority, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation in order to give the Company greater flexibility in considering and planning for future corporate needs, including facilitating further amendments to the Certificate of Incorporation. Effects of the Amendment If the proposed Amendment is approved, future amendments to the Company’s Certificate of Incorporation will be made or Performance Shares will be issued, asrequire a simple majority of the case may be, and the extent to which such payment or the receipttotal voting power of all outstanding shares of capital stock rather than a two-thirds majority (66.667%) vote of such Performance Shares or Performance Units may be deferred.shares. (c) Withholding Taxes. The Company or its Affiliates shall be entitled to withholdEffective Date
If our stockholders approve Proposal 3, the third amended and deduct from future wagesrestated Certificate of Incorporation will become effective upon filing with the Secretary of State of the Participant all legally required amounts necessaryState of Delaware, which we anticipate doing as soon as practicable following stockholder approval. However, even if our stockholders approve the Proposal, our Board reserves the right to satisfyelect not to proceed with the Amendment, if, at any and all withholding and employment-related taxes attributabletime prior to filing the Participant's Performance Award. InCertificate of Incorporation, our Board determines that it is no longer in the event the Participant is required under the Performance Award Agreement to paybest interests of the Company orand its Affiliates, or make arrangements satisfactorystockholders to proceed with the Company or its Affiliates respecting payment of, such withholding and employment-related taxes, the Administrator may, in its discretion and pursuant to such rules as it may adopt, permit the Participant to satisfy such obligations, in whole or in part, by delivering shares of Common Stock, including shares of Stock received pursuant to the Performance Award. Such shares shall have a Fair Market Value equal to the minimum required tax withholding, based on the minimum statutory withholding rates for federal and state tax purposes, including payroll taxes. In no event may the Participant deliver shares having a Fair Market Value in excess of such statutory minimum required tax withholding. The Participant's election to deliver shares of Common Stock for this purpose shall be made on or before the date that the amount of tax to be withheld is determined under applicable tax law. Such election shall be approved by the Administrator and otherwise comply with such rules as the Administrator may adopt to assure compliance with Rule 16b-3, or any successor provision, as then in effect, of the General Rules and Regulations under the Exchange Act, if applicable.Amendment. (d) Nontransferability. No Performance Award shall be transferable, in whole or in part, by the Participant, other than by will or by the laws of descent and distribution. If the Participant shall attempt any transfer of any Performance Award granted under the Plan, such transfer shall be void and the Performance Award shall terminate.RECOMMENDATION OF THE BOARD FOR PROPOSAL NO. 3:
(e) No Rights as Shareholder.THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR STOCKHOLDERS VOTE “FOR” THE APPROVAL OF AN AMENDMENT TO THE COMPANY’S SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO REDUCE THE PERCENTAGE OF OUTSTANDING SHARES REQUIRED TO APPROVE AN AMENDMENT TO THE CERTIFICATE OF INCORPORATION FROM 66.667% TO A Participant (or the Participant's successor or successors) shall have no rights as a shareholder with respect to any shares covered by a Performance Award until the date of the issuance of a stock certificate evidencing such shares. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property), distributions or other rights for which the record date is prior to the date such stock certificate is actually issued (except as otherwise provided in Section 14 of the Plan).
(f) Other Provisions. The Performance Award Agreement authorized under this Section 12 shall contain such other provisions as the Administrator shall deem advisable.
SECTION 14.
STOCK APPRECIATION RIGHTS
Each Stock Appreciation Right shall be evidenced by a Stock Appreciation Right Agreement, which shall comply with and be subject to the following terms and conditions:
(a) Awards. A Stock Appreciation Right shall entitle the Participant to receive, upon exercise, cash, shares of Common Stock, or any combination thereof, having a value equal to the excess of (i) the Fair Market Value of a specified number of shares of Common Stock on the date of such exercise, over (ii) a specified exercise price. The number of shares and the exercise price of the Stock Appreciation Right shall be determined by the Administrator on the date of grant. The specified exercise price shall be equal to 100% of the Fair Market Value of such shares of Common Stock on the date of grant of the Stock Appreciation Right, or such higher price as the Administrator determines. A Stock Appreciation Right may be granted independent of or in tandem with a previously or contemporaneously granted Option.
(b) Exercisability and Term. The Stock Appreciation Right Agreement shall state when the Stock Appreciation Right becomes exercisable (i.e., “vests”) and, if applicable in the Administrator's discretion, shall describe the Performance Objectives and Performance Period upon which vesting is based, the manner in which performance shall be measured and the extent to which partial achievement of the Performance Objectives may result in vesting of the Stock Appreciation Right. The Participant may exercise the Stock Appreciation Right, in full or in part, upon or after the vesting date of such Stock Appreciation Right (or portion thereof); provided, however, that the Participant may not exercise a Stock Appreciation Right after the maximum term of such Stock Appreciation Right, as such term is specified in the Stock Appreciation Right Agreement. Unless otherwise determined by the Administrator and specified in the Agreement governing the Award, no Stock Appreciation Right shall be exercisable during a term of more than ten (10) years after the date on which it is granted.SIMPLE MAJORITY, AS SET FORTH IN THE COMPANY’S PROPOSED THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION.
PROPOSAL 4: TO APPROVE AN AMENDMENT TO THE COMPANY’S SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO ALLOW FOR ANY ACTION REQUIRED OR PERMITTED TO BE TAKEN BY THE STOCKHOLDERS OF THE COMPANY TO BE EFFECTED BY WRITTEN CONSENT, AS SET FORTH IN THE COMPANY’S PROPOSED THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION. The Administrator may accelerate the exercisability of any Stock Appreciation Right granted hereunder which is not immediately exercisable ascomplete text of the dateCompany’s Third Amended and Restated Certificate of grant. If a Stock Appreciation RightIncorporation is granted in tandem withattached as Appendix A-2 THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION General The Board has recommended that the stockholders approve an Option,amendment to the Stock Appreciation Right Agreement shallCompany’s Second Amended and Restated Certificate of Incorporation to allow for any action required or permitted to be taken by the stockholders of the Company to be effected by written consent, as set forth in the extent to which the exerciseCompany’s proposed Third Amended and Restated Certificate of all or a portionIncorporation. Purpose of the Stock Appreciation Right shall cancel a corresponding portionAmendment and Restatement The Board believes it is in the best interests of the Option,Company to approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to allow for any action required or permitted to be taken by the extent to which the exercise of all or a portionstockholders of the Option shall cancel a corresponding portionCompany to be effected by written consent, as set forth in the Company’s proposed Third Amended and Restated Certificate of Incorporation in order to give the Company greater flexibility in considering and planning for future corporate needs, including facilitating further amendments to the Certificate of Incorporation. Effects of the Stock Appreciation Right.Amendment (c) Withholding Taxes. The CompanyIf the proposed Amendment is approved, any action required or its Affiliate shall be entitled to withhold and deduct from any future payments to the Participant all legally required amounts necessary to satisfy any and all withholding and employment-related taxes attributable to the Participant's Stock Appreciation Right, to require the Participant to remit an amount sufficient to satisfy such withholding requirements, or to require any combination thereof. In the event the Participant is required under the Stock Appreciation Right to pay the Company or its Affiliate, or make arrangements satisfactory to the Company or its Affiliate respecting payment of, such withholding and employment-related taxes, the Administrator may, in its sole discretion, require the Participant to satisfy such obligation, in whole or in part, by delivering shares of Common Stock or by electing to have the Company withhold shares of Common Stock otherwise issuable to the Participant as a result of the exercise of the Stock Appreciation Right. Such shares shall have a Fair Market Value equal to the minimum required tax withholding, based on the minimum statutory withholding rates for federal and state tax purposes, including payroll taxes, that are applicable to the supplemental income resulting from such exercise. In no event may the Participant deliver shares, nor may the Company or any Affiliate withhold shares, having a Fair Market Value in excess of such statutory minimum required tax withholding. The Participant's delivery of shares or the withholding of shares for this purpose shall occur on or before the later of (i) the date the Stock Appreciation Right is exercised, or (ii) the date that the amount of taxpermitted to be withheld is determined under applicable tax law.
(d) No Rights as Shareholder. A Participant (ortaken by the Participant's successors) shall have no rights as a shareholder with respect to any shares covered by a Stock Appreciation Right until the datestockholders of the issuance of a stock certificate evidencing such shares; provided, however, that in lieu of stock certificates, the Company may evidence such sharesbe effected by a book entrywritten consent, as set forth in the recordsCompany’s proposed amendment to the Company’s Second Amended and Restated Certificate of Incorporation to allow for any action required or permitted to be taken by the stockholders of the Company or its designated agent (if permittedto be effected by written consent, as set forth in the Company's designated agentCompany’s proposed Third Amended and applicable law,Restated Certificate of Incorporation.
Effective Date If our stockholders approve Proposal 4, the fourth amended and restated Certificate of Incorporation will become effective upon filing with the Secretary of State of the State of Delaware, which we anticipate doing as determined bysoon as practicable following stockholder approval. However, even if our stockholders approve the Administrator in its sole discretion). No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property), distributions or other rights for whichProposal, our Board reserves the record date isright to elect not to proceed with the Amendment, if, at any time prior to filing the date such stock certificateCertificate of Incorporation, our Board determines that it is actually issued or such book entry is made. (e) Other Provisions. The Stock Appreciation Right Agreement authorized under this Section 14 shall contain such other provisions as the Administrator shall deem advisable, including but not limited to any restrictions on the exercise of the Stock Appreciation Right which may be necessary to comply with Rule 16b-3.
SECTION 15.
RECAPITALIZATION, EXCHANGE,
LIQUIDATION, OR CHANGE OF CONTROL
(a) In General. In the event of an increase or decreaseno longer in the number of shares of Common Stock resulting from a stock dividend, stock split, reverse split, combination or reclassification of the Common Stock, or any other increase or decrease in the number of issued shares of Common Stock effected without receipt of consideration by the Company, other than due to conversion of the convertible securitiesbest interests of the Company and its stockholders to proceed with the Administrator may, in its sole discretion, adjust the value determinations applicable to outstanding Awards and the Plan in order to reflect such change, including adjustment of the class and number of shares of stock reserved under Section 6 of the Plan, the class and number of shares of stock covered by each outstanding Award, and, if and as applicable, the exercise price per share of each outstanding Award and the Annual Award Limits. Additional shares which may become covered by the Award pursuant to such adjustment shall be subject to the same restrictions as are applicable to the shares with respect to which the adjustment relates.Amendment.
(b) Liquidation. Unless otherwise provided in the Agreement evidencing an Award, in the event of a dissolution or liquidation of the Company, the Administrator may provide for one or both of the following:RECOMMENDATION OF THE BOARD FOR PROPOSAL NO. 4:
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR STOCKHOLDERS VOTE “FOR” THE APPROVAL OF AN AMENDMENT TO THE COMPANY’S SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO ALLOW FOR ANY ACTION REQUIRED OR PERMITTED TO BE TAKEN BY THE STOCKHOLDERS OF THE COMPANY TO BE EFFECTED BY WRITTEN CONSENT, AS SET FORTH IN THE COMPANY’S PROPOSED THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION. (i)The Board knows of no other matters that will be presented for consideration at the acceleration ofMeeting, but if other matters properly come before the exercisability of any or all outstanding Options or Stock Appreciation Rights,meeting, the vesting and payment of any or all Performance Awards, or Restricted Stock Units, or the lapsing of the risks of forfeiture on any or all Restricted Stock Awards; provided, however, that no such acceleration, vesting or payment shall occur if the acceleration, vesting or payment would violate the requirements of Code Section 409A; or
(ii) the complete termination of the Plan and the cancellation of any or all Awards (or portions thereof) which have not been exercised, have not vested, or remain subject to risks of forfeiture,persons named as applicable, in each case immediately prior to the completion of such a dissolution or liquidation.
(c) Change of Control. Unless otherwise providedproxies in the Agreement evidencing an Award,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 event of a Change of Control,enclosed postage-paid envelope. If you attend the Administratorvirtual Meeting, you may providerevoke your Proxy at that time and vote virtually, if you wish. Otherwise your Proxy will be voted for one or more of the following:you.
(i) the acceleration of the exercisability of any outstanding Options or Stock Appreciation Rights (or portions thereof), the vesting and payment of any Performance Awards (or portions thereof), or the lapsing of the risks of forfeiture on any Restricted Stock Awards or Restricted Stock Units (or portion thereof);
(ii) the complete termination of this Plan, the cancellation of outstanding Options or Stock Appreciation Rights (or portion thereof) not exercised prior to a date specified by the Board (which date shall give Participants a reasonable period of time in which to exercise such Option or Stock Appreciation Right prior to the effective date of such Change of Control), the cancellation of any Performance Award (or portion thereof) and the cancellation of any Restricted Stock Awards or Restricted Stock Units (or portion thereof) for which the risks of forfeiture have not lapsed;
(iii) that the entity succeeding the Company by reason of such Change of Control, or the parent of such entity, shall assume or continue any or all Awards (or portions thereof) outstanding immediately prior to the Change of Control or substitute for any or all such Awards (or portions thereof) a substantially equivalent award with respect to the securities of such successor entity, as determined in accordance with applicable laws and regulations; or
(iv) that Participants holding outstanding Awards shall become entitled to receive, with respect to each share of Common Stock subject to such Award (whether vested or unvested, as determined by the Administrator pursuant to subsection (c)(i) hereof) as of the effective date of any such Change of Control, cash in an amount equal to (1) for Participants holding Options or Stock Appreciation Rights, the excess of the Fair Market Value of such Common Stock on the date immediately preceding the effective date of such Change of Control over the exercise price per share of Options or Stock Appreciation Rights, or (2) for Participants holding Awards other than Options or Stock Appreciation Rights, the Fair Market Value of such Common Stock on the date immediately preceding the effective date of such Change of Control.
The Administrator need not take the same action with respect to all Awards (or portions thereof) or with respect to all Participants. In addition, the Administrator may restrict the rights of or the applicability of this Section 15 to the extent necessary to comply with Section 16(b) of the Exchange Act, the Internal Revenue Code or any other applicable law or regulation. The grant of an Award pursuant to the Plan shall not limit in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge, exchange or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets.
SECTION 16.
NONTRANSFERABILITY
(a) In General. Except as expressly provided in the Plan or an Agreement, no Award shall be transferable by the Participant, in whole or in part, other than by will or by the laws of descent and distribution. If the Participant shall attempt any transfer of any Award, such transfer shall be void and the Award shall terminate.
(b) Nonqualified Stock Options. Notwithstanding anything in this Section 16 to the contrary, the Administrator may, in its sole discretion, permit the Participant to transfer any or all Nonqualified Stock Options to any member of the Participant's “immediate family” as such term is defined in Rule 16a-1(e) of the Exchange Act, or any successor provision, or to one or more trusts whose beneficiaries are members of such Participant's | | | By Order of the Board of Directors | | | | | | | | /s/ Jeffrey Peck | | | | Jeffrey Peck | | | | Chairman |
“immediate family” or partnerships in which such familyAppendix A-1
Audit Committee Report - Year Ended December 31, 2019 The Audit Committee was established to implement and to support oversight function of the Board of Directors with respect to the financial reporting process, accounting policies, internal controls and independent registered public accounting firm of iSun, Inc. Each member of the Audit Committee is an “independent” director and “financially literate” as determined by the Board, based on the listing standards of Nasdaq. Each member of the Audit Committee also satisfies the Securities and Exchange Commission’s additional independence requirements for members areof audit committees. In addition, the only partners; provided, however,Board has determined that Mr. Dus, the Chair of the Audit Committee, qualifies as an “audit committee financial expert,” as rdefined by the Securities and Exchange Commission’s rules and regulations. In fulfilling its responsibilities, the Audit Committee: reviewed and discussed the audited financial statements with management and our independent auditors; discussed with the independent registered public accounting firm the matters required to be discussed by Statement on Auditing Standards No. 1301, as amended; received from the independent registered public accounting firm the written disclosures and the letter required by the applicable requirements of the Public Company Accounting Oversight Board regarding the independent auditors’ communications with the Audit Committee concerning independence; and considered the compatibility of non-audit services with the independent registered public accounting firm’s independence and has discussed with the independent accounting firm its independence. Based on these reviews and discussions, the Audit Committee recommended to the Board, and the Board approved, that the Participant cannot receive any considerationaudited financial statements of iSun, Inc. be included in its Annual Report on Form 10-K for the transferyear ended December 31, 2019 for filing with the Securities and such transferred Nonqualified Stock OptionExchange Commission. The information contained in this Audit Committee Report shall continuenot be deemed to be “soliciting material” to be “filed” with the Securities and Exchange Commission, nor shall such information be incorporated by reference into any future filings with the Securities and Exchange Commission, or subject to the same terms and conditions as were applicable to such Nonqualified Stock Option immediately prior to its transfer. (c) Beneficiary Designation. Each Participant may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom any benefit under the Plan is to be paid in caseliabilities of such Participant's death before receipt of any or all of such benefit. Each such designation shall revoke all prior designations by the same Participant, shall be in a form prescribed by the Administrator, and will be effective only when filed by the Participant in writing with the Company during the Participant's lifetime. In the absence of any such designation, benefits remaining unpaid at the Participant's death shall be paid to the Participant's estate.
SECTION 17.
INVESTMENT PURPOSE AND SECURITIES COMPLIANCE
No shares of Common Stock shall be issued pursuant to the Plan unless and until there has been compliance, in the opinion of Company's counsel, with all applicable legal requirements, including without limitation, those relating to securities laws and stock exchange listing requirements. As a condition to the issuance of Common Stock to Participant, the Administrator may require Participant to (a) represent that the shares of Common Stock are being acquired for investment and not resale and to make such other representations as the Administrator shall deem necessary or appropriate to qualify the issuance of the shares as exempt from the Securities Act of 1933 and any other applicable securities laws, and (b) represent that Participant shall not dispose of the shares of Common Stock in violationSection 18 of the Securities Exchange Act of 1933 or any other applicable securities laws.
As a further condition1934, as amended, except to the grant of any Option or the issuance of Common Stock toextent that we specifically incorporate it by reference into a Participant, the Participant agrees to the following:
(a) In the event the Company advises the Participant that it plans an underwritten public offering of its Common Stock in compliance withdocument filed under the Securities Act of 1933, as amended, or the Participant will execute any lock-up agreementSecurities Exchange Act of 1934, as amended.
Respectfully submitted by the Company and the underwriter(s) deem necessary or appropriate, in their sole discretion, in connection with such public offering. (b) In the event the Company makes any public offeringAudit Committee of its securities and determines in its sole discretion that it is necessary to reduce the number of outstanding Awards so as to comply with any state's securities or Blue Sky law limitations with respect thereto, the Board of Directors, of the Company shall have the right (i) to accelerate the exercisability of any Award and the date on which such Award must be exercised or remove the risks of forfeiture to which the Award is subject, provided that the Company gives Participant prior written notice of such acceleration or removal, and (ii) to cancel any outstanding Awards (or portions thereof) which Participant does not exercise prior to or contemporaneously with such public offering.
(c) In the event of a Change of Control, Participant will comply with Rule 145 of the Securities Act of 1933 and any other restrictions imposed under other applicable legal or accounting principles if Participant is an “affiliate” (as defined in such applicable legal and accounting principles) at the time of the Change of Control, and Participant will execute any documents necessary to ensure compliance with such rules.Daniel Dus, Chair
The Company reserves the right to place a legend on any stock certificate (or a notation on any book entry shares permitted by the Administrator) issued in connection with an Award pursuant to the Plan to assure compliance with this Section 17.
The Company shall not be required to register or maintain the registration of the Plan, any Award, or any Common Stock issued or issuable pursuant to the Plan under the Securities Act of 1933 or any other applicable securities laws. If the Company is unable to obtain the authority that the Company or its counsel deems necessary for the lawful issuance and sale of Common Stock under the Plan, the Company shall not be liable for the failure to issue and sell Common Stock upon the exercise, vesting, or lapse of restrictions of forfeiture of an Award unless and until such authority is obtained. A Participant shall not be eligible for the grant of an Award or the issuance of Common Stock pursuant to an Award if such grant or issuance would violate any applicable securities law.Stewart Martin
SECTION 18.Appendix A-2
CERTIFICATE OF AMENDMENT AND RESTATEMENT
AMENDMENTOF
CERTIFICATE OF THE PLANINCORPORATION
OF
iSUN, INC.,
a Delaware corporation iSun, Inc., a corporation organized and existing under and by virtue of the Delaware General Corporation Law, does hereby certify that: FIRST: The name of the corporation is iSun, Inc. (the “Corporation”) SECOND: The Board may from time to time, insofar as permitted by law, suspend or discontinueof Directors of the Plan or revise or amend it in any respect; provided, however, that no such suspension, termination, revision, or amendment, except as is authorized in Section 15, shall impairCorporation (the “Board of Directors”) has duly adopted resolutions proposing and declaring advisable the terms and conditions of any Award which is outstanding on the date of such suspension, termination, revision, orfollowing amendment to the material detrimentCompany’s Second Amended and Restated Certificate of Incorporation of the Participant withoutCorporation (the “Certificate of Incorporation”), directing that said amendment be submitted to the consentstockholders of the Participant. NotwithstandingCorporation for consideration thereof, and authorizing the foregoing, except as provided in Section 15Corporation to execute and file with the Secretary of State of the Plan or toState of Delaware this Certificate of Amendment and Restatement of Certificate of Incorporation (this “Certificate of Amendment”). THIRD: Upon the extent requiredeffectiveness of this Certificate of Amendment, the Company’s Second Amended and Restated Certificate of Incorporation is hereby amended and restated as set forth in Appendix A-2 attached hereto. FOURTH: This Certificate of Amendment has been duly approved by applicable law or regulation, the Board may not, without shareholder approval, revise or amendof Directors in accordance with the Plan to (i) materially increase the numberapplicable provisions of shares subject to the Plan, (ii) change the designation of Participants, including the class of Employees, eligible to receive Awards, (iii) decrease the price at which Options or Stock Appreciation Rights may be granted, (iv) cancel, regrant, repurchase for cash, or replace Options or Stock Appreciation Rights that have an exercise price in excessSection 242 of the Fair Market ValueDelaware General Corporation Law. FIFTH: This Certificate of Amendment has been duly approved by the stockholders of the Common Stock with other awards, or amend the terms of outstanding Options or Stock Appreciation Rights to reduce their exercise price, (v) materially increase the benefits accruing to Participants under the Plan, or (vi) make any modification that will cause Incentive Stock Options to fail to meet the requirements of Code Section 422. To the extent applicable, the Plan and all Agreements shall be interpreted to be exempt from or complyCorporation in accordance with the requirementsapplicable provisions of Code Section 409A and, if applicable, to comply with Code Section 422, in each case including the regulations, notices, and other guidance of general applicability issued thereunder. Furthermore, notwithstanding anything in the Plan or any Agreement to the contrary, the Board may amend the Plan or Agreement to the extent necessary or desirable to comply with such requirements without the consent228 of the Participant.Delaware General Corporation Law.
SECTION 19.
RIGHTS AND OBLIGATIONS ASSOCIATED WITH AWARDS
(a) No Obligation to Exercise. The grantingSIXTH: This Certificate of an Option or Stock Appreciation Right shall impose no obligationAmendment will be effective upon the Participant to exercise such Option or Stock Appreciation Right.
(b) No Employment or Other Service Rights. The granting of an Award hereunder shall not impose upon the Company or any Affiliate any obligation to retain the Participant in its employ or service for any period.
(c) Unfunded Plan. Participants shall have no right, title, or interest whatsoever in or to any particular assets of the Company or any of its Affiliates by reason of the right to receive a benefit under the terms of the Plan. Nothing contained in the Plan, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and any Participant, beneficiary, legal representative, or any other person. To the extent that any person acquires a right to receive shares of Common Stock or payments from the Company or any of its Affiliates under the Plan, such right shall be no greater than the right of an unsecured general creditor of the Company or an Affiliate, as the case may be. All payments to be made hereunder shall be paid from the general funds of the Company or an Affiliate, as the case may be. In its sole discretion, the Administrator may authorize the creation of trusts or other arrangements to meet the obligations created under the Plan to deliver the shares of Common Stock or make payments in lieu of or with respect to Awards hereunder; provided, however, that the existence of such trusts or other arrangements is consistentfiling with the unfunded statusSecretary of State of Delaware.
IN WITNESS WHEREOF, the Plan. SECTION 20.
MISCELLANEOUS
(a) Issuance of Shares. The Company is not required to issue or remove restrictions on shares of Common Stock granted pursuant to the Plan until the Administrator determines that: (i) all conditions of the Award have been satisfied, (ii) all legal matters in connection with the issuance have been satisfied, and (iii) the Participantundersigned has executed and delivered to the Company such representations or agreementsthis Certificate of Amendment as the Administrator may consider appropriate, in its sole discretion, to satisfy the requirements of any applicable law or regulation.
(b) Choicethis 11th day of Law. The law of the state of Delaware shall govern all questions concerning the construction, validity, and interpretation of the Plan, without regard to that state's conflict of laws rules.May, 2021.
| | | iSUN, INC. | | | | | | | | | | | By: | | | /s/ Jeffrey Peck | | | | | | | Jeffrey Peck | | | | | | | Chairman |
(c) Severability. InTHIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
iSUN, INC. May 11, 2021 iSUN, INC., a corporation existing under the event that any provisionlaws of the PlanState of Delaware (the “Corporation”), hereby certifies as follows: 1.
| The present name of the Corporation is “iSun, Inc.” |
2.
| The Corporation’s Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on October 8, 2014 (the “Original Certificate”). |
3.
| This Third Amended and Restated Certificate of Incorporation (this “Certificate”) amends, restates and integrates the provisions of the Second Amended and Restated Certificate of Incorporation which was filed with the Secretary of State of the State of Delaware on June 19, 2019 (the “Second Amended and Restated Certificate”). |
4.
| This Certificate was duly approved and adopted by the Board of Directors of the Corporation (the “Board”) and stockholders of the Corporation in accordance with the applicable provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware (“DGCL”). |
5.
| This Certificate shall become effective upon filing with the Secretary of State of Delaware. |
6.
| The text of the Second Amended and Restated Certificate is hereby amended and restated in its entirety to read in full as follows: |
FIRST: The name of the corporation is iSun, Inc. (the “Corporation”). SECOND: The registered office of the Corporation is to be located at 874 Walker Road, Suite C, Dover, Delaware 19904, County of Kent. The name of its registered agent at that address is United Corporate Services, Inc. THIRD: The purpose of the Corporation shall be held illegalto engage in any lawful act or invalidactivity for any reason, such illegality or invaliditywhich corporations may be organized under the DGCL. FOURTH: The total number of shares of all classes of capital stock which the Corporation shall not affect the remaining provisionshave authority to issue is 50,000,000, of the Plan, and the Planwhich 49,000,000 shares shall be construedCommon Stock, par value $.0001 per share (“Common Stock”), and enforced as if the illegal or invalid provision had not been included. (d) No Duty to Notify. The Company1,000,000 shares shall have no duty or obligation to any Participant to advise such Participant as to the time and manner of exercising an Award or as to the pending termination or expiration of such Award. In addition, the Company has no duty or obligation to minimize the tax consequences of an Award to the Participant.be Preferred Stock, par value $.0001 per share (“Preferred Stock”).
A.
| Preferred Stock. The Board or any authorized committee thereof is expressly granted authority, to the fullest extent permitted by law, to issue shares of the Preferred Stock, in one or more series, and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof as shall be stated and expressed in the resolution or resolutions adopted by the Board or such committee providing for the issue of such series (a “Preferred Stock Designation”). Except as otherwise provided in any Certificate of Designation of any series of Preferred Stock, the number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, without a separate vote of the holders of the Preferred Stock, or any series thereof, unless a vote of any such holders is required pursuant to any Preferred Stock Designation. |
B.
| Common Stock. The powers, preferences and rights, and the qualifications, limitations and restrictions, of the Common Stock Common Stock are as follows: |
(i)
| Voting. Except as otherwise expressly required by law or provided in this Certificate, and subject to any voting rights provided to holders of Preferred Stock at any time outstanding, the holders of the Common Stock shall exclusively possess all voting power. Each share of Common Stock shall have one vote. Except as otherwise required by law or this Certificate (including any Preferred Stock Designation), at any annual or special meeting of the stockholders of the Corporation, the holders of |
 (ii)
| Dividends. Subject to any other provisions of this Certificate and the rights, if any, of the holders of any outstanding series of the Preferred Stock, the holders of the Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in such dividends and distributions. |
(iii)
| Liquidation, Dissolution or Winding-Up. Subject to the rights, if any, of the holders of any outstanding series of the Preferred Stock, in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of the Common Stock shall be entitled to receive all remaining assets and funds of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of the Common Stock held by them. |
C.
| Rights and Options. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to purchase shares of any class or series of the Corporation’s capital stock or other securities of the Corporation, and such rights, warrants and options shall be evidenced by instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock subject thereto may not be less than the par value thereof. |
FIFTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders: A.
| Number. The number of directors of the Corporation (exclusive of directors who may be elected by the holders of any one or more series of Preferred Stock which may at any time be outstanding, voting separately as a class or classes) shall be fixed at five. |
B.
| Classes, Election, Term and Vacancies. Subject to Article Fifth, paragraph D hereof, the Board shall be divided into three classes: Class A, Class B and Class B. The number of directors in each class shall be nearly as equal as possible. Prior to the filing of this Certificate the Board of Directors was comprised of five directors: two Class A directors whose term expires at the 2020 Annual Meeting of Stockhodler, one Class B director whose terms expires at the 2021 Annual Meeting and two Class C directors whose terms expire at the 2022 Annual Meeting of Stockholders. Directors (including incumbent directors) who are elected to succeed those directors whose term has expired shall be elected for a term expriring at the third Annual Meeting of Stockholders succeeding their election. Except as the DGCL may otherwise require, in the interim between annual meetings of stockholders or special meetings of stockholders called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board, including unfilled vacancies resulting from the removal of directors for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined in the Corporation’s bylaws), or by the sole remaining director. All directors shall hold office until the expiration of their respective terms of office and |
until their successors shall have been elected and qualified. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified. C.
| Removal. Subject to Article Fifth, paragraph D hereof, any or all of the directors (including persons elected by directors to fill vacancies in the Board) may be removed from office at any time, but only for cause and only by the affirmative vote of holders of a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. |
D.
| Preferred Stock – Directors. Notwithstanding any other provision of this Article Fifth, and except as otherwise required by law, whenever the holders of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the terms of such series of the Preferred Stock as set forth in this Certificate (including any Preferred Stock Designation) and such directors shall not be included in any of the classes created pursuant to this Article Fifth unless expressly provided by such terms. |
E.
| No Ballot Required. Election of directors need not be by ballot unless the bylaws of the Corporation so provide. |
F.
| Bylaws. The Board shall have the power, without the assent or vote of the stockholders, to make, alter, amend, change, add to or repeal the bylaws of the Corporation as provided in the bylaws of the Corporation. |
G.
| Approval of Contracts or Acts. The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such contract or act, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the Common Stock voted at such meeting (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and binding upon the Corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interests, or for any other reason. |
H.
| Additional Powers. In addition to the powers and authorities hereinbefore stated or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this Certificate, and to any bylaws from time to time made by the stockholders; provided, however, that no bylaw so made shall invalidate any prior act of the directors which would have been valid if such bylaw had not been made. |
I.
| Special Meetings of the Stockholders. Except as otherwise required by law and subject to the rights of the holders of any series of Preferred Stock, special meetings of the stockholders of the Corporation may be called only by or at the direction of the Chairman of the Board, the Chief Executive Officer of the Corporation or the Board pursuant to a resolution adopted by the Board. |
J.
| Section 203 of the DGCL. The Corporation expressly elects not to be governed by Section 203 of the DGCL. |
K.
| Action by Written Consent. Except as otherwise expressly provided by the terms of any series of Preferred Stock permitting the holders of such series of Preferred Stock to act by written consent, any action required or permitted to be taken by the stockholders of the Corporation may be effected by written consent of the stockholders in accordance with the DGCL. |
SIXTH: Indemnification. A.
| A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the |
DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Any repeal or modification of this paragraph A by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation with respect to events occurring prior to the time of such repeal or modification. B.
| The Corporation, to the full extent permitted by Section 145 of the DGCL, as amended from time to time, shall indemnify all officers and directors whom it may indemnify pursuant thereto (each an “indemnitee”). Expenses (including attorneys’ fees) incurred by such indemnitee in defending any civil, criminal, administrative, or investigative action, suit or proceeding for which such indemnitee may be entitled to indemnification hereunder shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such indemnitee to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized hereby. |
C.
| The rights to indemnification and advancement of expenses conferred on any indemnitee by this Article Sixth shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Certificate, the Corporation’s bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise |
D.
| Any repeal or amendment of this Article Sixth by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Certificate inconsistent with this Article Sixth, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision. |
E.
| This Article Sixth shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees. |
SEVENTH: Creditors. Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation. EIGHTH: Exclusive Jurisdiction of Delaware Courts. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Certificate or bylaws, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article Eighth. The choice of forum provision set forth in this Article Eighth does not apply to any actions arising under the Securities Act of 1933, as amended or the Securities Exchange Act of 1934, as amended. NINTH: Amendments to this Certificate. A.
| The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power. |
B.
| Notwithstanding anything contained in this Certificate or in the Corporation’s bylaws to the contrary, and notwithstanding the fact that a lesser percentage may be specified by the DGCL, this Certificate shall not be amended unless such action is approved by the affirmative vote of the holders of not less than a simple majority of the total voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. |
TENTH: The doctrine of corporate opportunity, or any other analogous doctrine, shall apply with respect to any of the Corporation’s officers or directors, or any of their respective affiliates, in circumstances where the application of any such doctrine would conflict with any fiduciary duties or contractual obligations they may have as of the date of this Certificate or in the future. IN WITNESS WHEREOF, the Corporation has caused this Certificate to be duly executed by the undersigned authorized officer as of the date first set forth above. | | | ISUN, INC. | | | | | | | | | | | By: | | | /s/ Jeffrey Peck | | | | Name: | | | Jeffrey Peck | | | | Title: | | | President and Chief Executive Officer |
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