FORM S-3
REGISTRATION STATEMENT
Ideal Power Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 14-1999058 | |
| (State | ||
incorporation or organization) | (I.R.S. Employer Identification | |
4120 Freidrich Lane, Suite 100
Austin, TXTexas, 78744
(512) 264-1542
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
R. Daniel Brdar
President and Chief Executive Officer
Ideal Power Inc.
4120 Freidrich Lane, Suite 100
Austin, TXTexas, 78744
(512) 264-1542
(Name, address,Address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Ned A. Prusse
Perkins Coie LLP (US)
1900 Sixteenth Street, Suite 2500
Denver, Colorado 80202
(303) 291-2300
Approximate date of commencement of proposed sale to the public: FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. box: ¨o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”filer,” “smaller reporting company” and “smaller reporting“emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ | Accelerated filer ¨ | ||
| Non-accelerated filer x | Smaller reporting company x | ||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨
CALCULATION OF REGISTRATION FEE
| Title of each class of securities to be registered (1) | Amount to be Registered (2)(3) | Proposed maximum offering price per security (3) | Proposed maximum aggregate offering price (3) | Amount of registration fee | ||||||||||
| Common Stock, par value $0.001 per share | 5,220,826 shares | $ | 3.200 | $ | 16,706,643.20 | $ | 1,936.30 | |||||||
| Common Stock, par value $0.001 per share, underlying Preferred Stock | 708,430 shares | $ | 3.200 | $ | 2,266,976.00 | $ | 262.75 | |||||||
| Common Stock, par value $0.001 per share, underlying Warrants | 6,166,426 shares | $ | 3.200 | $ | 19,732,563.20 | $ | 2,287.00 | |||||||
| Total: | 12,095,682 shares | $ | 38,706,182.40 | $ | 4,486.05 | |||||||||
Title of Each Class of Securities to be Registered (1) | Amount to be Registered (2) | Proposed Maximum Per Unit (2) | Proposed Maximum Aggregate Offering Price (2)(3) | Amount of Registration Fee (3) |
| Common Stock, par value $0.001 per share | — | — | — | — |
| Preferred Stock, par value $0.001 per share | — | — | — | — |
| Warrants | — | — | — | — |
| Units | — | — | — | — |
| Total | $25,000,000 | $2,727.50 |
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), an indeterminate number of additional securities are registered hereunder that may be issued to prevent dilution in connection with a stock split, stock dividend, recapitalization, or similar event or adjustment. |
| (2) | There are being registered under this registration statement such indeterminate number of shares of common stock, preferred stock, warrants and/or units of the registrant as shall have an aggregate initial offering price not to exceed $25,000,000. Any securities registered under this registration statement may be sold separately or as units with other securities registered under this registration statement. The proposed maximum initial offering prices per unit or security will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered under this registration statement. The securities registered also include such indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder. Separate consideration may or may not be received for securities that are issuable upon conversion, exercise or exchange of other securities. |
| (3) | Calculated pursuant to Rule 457(o) under the Securities Act. |
The shares being registered hereunder consist of 5,220,826 shares of common stock, 708,430 shares of common stock issuable upon conversion of the Company's Series A Convertible Preferred Stock and 6,166,426 shares of common stock that may be acquired upon exercise of warrants, in each case which shares of common stock may be sold from time to time by the selling stockholders.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 31, 2017
PROSPECTUS
$25,000,000
Common Stock
Preferred Stock
Warrants
Units
We may, from time to time ofin one or more offerings, offer and sell up to an$25,000,000 in the aggregate of 12,095,682 shares of our common stock by the selling stockholders identified in this prospectus or a supplement hereto. These shares consist of shares of our common stock that we issued to the selling stockholders pursuant to private placements of our common stock or upon the issuance of convertible preferred stock or upon the exercise of warrants to purchase our common stock.
Our common stock is listed on Thethe Nasdaq Capital Market (“Nasdaq”) under the symbol “IPWR.” On March 29, 2017,November 19, 2020, the last reported sale price of our common stock on The Nasdaq Capital Market was $3.23.
As of November 20, 2020, the aggregate market value of our outstanding common stock held by non-affiliates, or public float, was approximately $21.2 million, based on the closing price of our common stock as reported on Nasdaq on November 19, 2020, as calculated in accordance with General Instruction I.B.6 of Form S-3. We have not sold any securities pursuant to General Instruction I.B.6. of Form S-3 during the 12 calendar months prior to and including the date of this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell any securities in a public primary offering with a value exceeding one-third of our public float in any 12-month period unless our public float subsequently rises to $75.0 million or more.
Investing in our common stocksecurities involves risks. You should carefully considerSee “Risk Factors” on page 5 of this prospectus, and in the risks described under “Risk Factors” in Item 1A of our most recent Annual Report on Form 10-K (which isdocuments which are incorporated by reference herein), as well asherein, and contained in the other information contained or incorporated by reference in this prospectus or in anyapplicable prospectus supplement hereto before making a decision to invest in our common stock. See “Where You Can Find More Information” below.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined ifpassed upon the adequacy or accuracy of this prospectus is truthful or complete.prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is ., 2020.
TABLE OF CONTENTS
| Page | |
| ABOUT THIS PROSPECTUS | |
| USE OF PROCEEDS | |
| DESCRIPTION OF WARRANTS | 11 |
| DESCRIPTION OF UNITS | 13 |
| PLAN OF DISTRIBUTION | |
| LEGAL MATTERS | |
| EXPERTS | |
| WHERE YOU CAN FIND MORE INFORMATION | |
i
This prospectus is part of a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), that we filed with the Securities and Exchange Commission (the “SEC”) using the “shelf” registration process. Under this shelf registration process, we may offer and sell any combination of the securities described in this prospectus in one or more offerings, up to a total dollar amount of $25,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we offer the securities described in this prospectus, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of the securities being offered. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update or change information contained in or incorporated by reference into this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. This prospectus does not contain all the information provided in the registration statement filed with the SEC. You should rely only oncarefully read both this prospectus and any prospectus supplement (and any applicable free writing prospectuses), together with the additional information described below under “Where You Can Find More Information” and “Information Incorporated By Reference” before you make an investment decision
We have not authorized anyone to provide any information other than that we have providedcontained or incorporated by reference in this prospectus or in any applicable prospectus supplement and any relatedor free writing prospectus thatprepared by or on behalf of us or to which we may authorize to be provided tohave referred you. We have not authorized anyonetake no responsibility for, and can provide no assurance as to provide you with different information. No dealer, salesperson orthe reliability of, any other person is authorized toinformation that others may give any information or to represent anything not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus that we may authorize to be provided to you. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so.
You should assume that the information appearing in this prospectus anyand the applicable prospectus supplement or any related free writingto this prospectus is accurate only as of the date on the front of the documentits respective cover and that any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of a security.
This prospectus and the information incorporated herein by referenceany accompanying prospectus supplements may include trademarks, servicesservice marks and trade names owned by us or other companies. All trademarks, service marks and trade names included in this prospectus or any accompanying prospectus supplement are the property of their respective owners.
Unless the context otherwise indicates, references in this prospectus to “we,” “us,” “our,” “Ideal Power” and the “Company” are to Ideal Power Inc. The term “you” refers to a prospective investor.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any applicable prospectus supplement and the documents incorporated by reference intoherein and therein and the documents incorporated by reference herein contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and the provisions of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Forward-looking statements give our current expectations or forecasts of future events. You can identify these statements by the fact that they do not relate strictly to historical or current facts. You can find many (but not all) of these statements by looking for words such as “approximates,” “believes,” “hopes,” “expects,” “anticipates,” “estimates,” “projects,” “intends,” “plans,” “would,” “should,” “could,” “may” or other similar expressions in this prospectus, any applicable prospectus supplement and the documents incorporated by reference herein and therein and the documents incorporated by reference herein. In particular, these include statements relating to future actions, prospective products, applications, customers, technologies, future performance or results of anticipated products, expenses, and financial results. These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from our historical experience and our present expectations or projections. Factors that could cause actual results to differ from those discussed in the forward-looking statements include, but are not limited to:
| · | our history of losses; |
| · | our ability to generate revenue; |
| · | our limited operating history; |
| · | the size and growth of markets for our technology; |
| · | regulatory developments that may affect our business; |
| · | our ability to successfully develop new technologies, particularly our bi-directional bipolar junction transistor, or B-TRAN™; |
| · | our expectations regarding the timing of prototype and commercial fabrication of B-TRAN™ devices; |
| · | our expectations regarding the performance of our B-TRAN™ and the consistency of that performance with both internal and third-party simulations; |
| · | the expected performance of future products incorporating our B-TRAN™; |
| · | the performance of third-party consultants and service providers whom we have and will continue to rely on to assist us in development of our B-TRAN™ and related drive circuitry; |
| · | the rate and degree of market acceptance for our B-TRAN™; |
| · | the time required for third parties to redesign, test and certify their products incorporating our B-TRAN™; |
| · | our ability to successfully commercialize our B-TRAN™ technology; |
| · | our ability to secure strategic partnerships with semiconductor fabricators and others related to our B-TRAN™ technology; |
| · | our ability to obtain, maintain, defend and enforce intellectual property rights protecting our technology; |
| · | the success of our efforts to manage cash spending, particularly prior to the commercialization of our B-TRAN™ technology; |
| · | general economic conditions and events and the impact they may have on us and our potential partners and licensees; |
| · | our ability to obtain adequate financing in the future, as and when we need it; |
| · | our ability to maintain listing of our common stock on the Nasdaq Capital Market; |
| · | the impact of the novel coronavirus (COVID-19) on our business, financial condition and results of operations; |
| · | our success at managing the risks involved in the foregoing items; and |
| · | other factors discussed in this prospectus, our Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on March 31, 2020, which is incorporated by reference herein, and our other filings with the SEC. |
The forward-looking statements are based upon management’s beliefs and assumptions and are made as of the date made. We undertake no obligation to publicly update or revise any related free writing prospectuses areforward-looking statements included or incorporated by reference in this prospectus, any applicable prospectus supplement and the property of their respective owners.
Ideal Power Inc.
In April 2018, we make significant investments in research and development and protectionrealigned into two operating divisions: Power Conversion Systems, to continue the commercialization of our intellectual property. At December 31, 2016, we have been granted 32 US patentsPPSA™ technology, and six foreign patents relatedB-TRAN, to PPSA
In January 2019, our specifications, enabling us to scale production to meet demand onBoard of Directors (our “Board”) approved a cost-effective basis without requiring significant expenditures on manufacturing facilities and equipment. As our products establish a foothold in key power conversion markets, we may beginstrategic shift to focus on licensingthe commercialization of our proprietary PPSA
We may seek to build a portfolio of relationships that generate license fees and royalties from OEMs for sales of their products which integrate PPSA
Our principal executive offices are located at 4120 Freidrich Lane, Suite 100, Austin, Texas 78744 and our telephone number is (512) 264-1542. Our website can be accessed ataddress is www.idealpower.com. The foregoing website address is provided as an inactive textual reference only. The information containedprovided on or that may be obtained from, our website (or any other website referred to in this prospectus) is not and shall not be deemed to be, a part of this this prospectus and is not incorporated by reference as part of this prospectus.
An investment in our securities involves a high degree of risk. Before deciding whether to invest in our securities, yourisks. You should carefully consider carefully the risks described in the sections entitled “Risk Factors” in any prospectus supplement and uncertainties discussed under the section titled "Risk Factors" containedthose set forth in our most recent Annual Report on Form 10-K, as well as any amendments thereto reflected in subsequent filings with the SEC, which aredocuments incorporated by reference intoin this prospectus in their entirety, together withand any applicable prospectus supplement, as well as other information in this prospectus the documents incorporated by reference and any free writingapplicable prospectus that we may authorize for use in connection with a specific offering. Thesupplement, before purchasing any of our securities. Each of the risks described in these sections and documents are not the only ones we face, but those that we consider to be material. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future performance,materially and historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs,adversely affect our business, financial condition, results of operations or cash flowand prospects, and could be seriously harmed. This could cause the trading price of our securities to decline, resultingresult in a loss of all or part of your investment. PleaseAdditional risks and uncertainties not known to us or that we deem immaterial may also read carefully the section below titled "Forward-Looking Statements."
Unless otherwise indicated in new markets, and the timing of the receipt of any necessary certifications;
The following description of our commoncapital stock is intended as a summary only. This description is based upon, and warrantsis qualified by reference to, purchase sharesour certificate of common stock. We also agreedincorporation, as amended to selldate (our “certificate of incorporation”), our certificate of designation of preferences, rights and limitations of Series A convertible preferred stock (our “certificate of designation”), our bylaws, as amended to investors whose purchase of common stock would have resulted in such investor, together with its affiliatesdate (our “bylaws”), and certain related parties, beneficially owning more than 9.99%applicable provisions of the our outstanding Common Stock immediately following the consummationGeneral Corporation Law of the offering, sharesState of Delaware (the “DGCL”). This summary is not complete. You should read our newly designated Series A Convertible Preferred Stock, orcertificate of incorporation (including the preferred stock. Each sharecertificate of common stock or preferred stock was sold together with a warrantamendment thereto), our certificate of designation and our bylaws, which are incorporated by reference as exhibits to purchase one share of common stock at a price of $2.535 per share of common stock and related warrant, or per share of preferred stock and related warrant. The investors purchased an aggregate of 5,220,826 shares of common stock, 708,430 shares of preferred stock, and 6,166,426 related warrants, including 237,170 warrants issued to the placement agent as part of the placement agent's fee, for gross proceeds to us of $15,030,664 before placement agent fees and transaction expenses. The warrants have an exercise price of $2.41 per share and are exercisable for a period commencing 6 months and ending 36 months after the closing of the offering, except for the placement agent's 237,170 warrants which have an exercise price of $2.89. The investors included all of our directors and officers, each of whom purchased units on the same terms and conditions as the other investors. We consummated the private placement on March 3, 2017. Each of the investors in the private placement is a selling stockholder. For purposes of the table below, beneficial ownership is based on the securities held of record by the selling stockholders as of March 20, 2017.
Authorized and Outstanding Capital Stock
Our certificate of incorporation provides that we agreedmay issue up to pay to National Securities Corporation a cash commission equal to 7.5% of the gross proceeds from the sale of the securities and issue it a three-year warrant to purchase that number of50,000,000 shares of common stock, equalpar value $0.001 per share, and 10,000,000 shares of preferred stock, par value $0.001 per share. 3,000,000 shares of our authorized preferred stock have been designated as Series A Convertible Preferred Stock, par value $0.001 per share (the “Series A Preferred Stock”). As November 19, 2020, we had outstanding 2,975,388 shares of common stock and no shares of preferred stock.
Common Stock
Each holder of our common stock is entitled to 4%one vote for each such share outstanding in the holder’s name. No holder of common stock is entitled to cumulate votes in voting for directors, which means that the holders of a majority of the outstanding shares of our common stock will be entitled to elect all of the directors standing for election.
Holders of our common stock are entitled to such dividends as may be declared by our Board out of funds legally available for such purpose, subject to any preferential dividend rights of any then outstanding preferred stock.
In the event of our liquidation, dissolution or winding up, the holders of our common stock are entitled to receive pro rata our assets, which are legally available for distribution, after payments of all debts and other liabilities and subject to the prior rights of any holders of preferred stock then outstanding.
The shares of common stock are neither redeemable nor convertible. Holders of common stock have no preemptive or subscription rights to purchase any of our securities. The shares of common stock are not subject to further calls or assessment by us. There are no redemption or sinking fund provisions applicable to the common stock. All of the outstanding shares of our common stock are fully paid and non-assessable.
Preferred Stock
General
Our certificate of incorporation provides that our Board has the authority, without any further action by our stockholders, to designate and issue up to 10,000,000 shares of preferred stock in one or more classes or series and to fix the powers, rights, preferences, and privileges of each class or series of preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences and the number of shares constituting any class or series, which may be greater than the rights of the holders of the common stock.
The purpose of authorizing our Board to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a shareholder vote on specific issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions, future financings and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or could discourage a third party from seeking to acquire, a majority of our outstanding voting stock. Additionally, the issuance of preferred stock may adversely affect the holders of our common stock by restricting dividends on our common stock, diluting the voting power of our common stock or subordinating the liquidation rights of our common stock. As a result of these or other factors, the issuance of preferred stock issuedcould have an adverse impact on the market price of our common stock.
Series A Preferred Stock
On February 23, 2017, we filed our certificate of designation with the Secretary of State of the State of Delaware creating our Series A Preferred Stock and establishing the designations, preferences, and other rights of the Series A Preferred Stock, which became effective upon filing.
Our Series A Preferred Stock ranks senior to the investors in the private placement (excluding the shares ofour common stock underlying the warrants). Pursuantwith respect to this agreement, at the closingdividend rights and rights on liquidation, winding-up and dissolution. Our Series A Preferred Stock has a stated value of the financing, we issued$2.535. Holders of Series A Preferred Stock are entitled to National Securities Corporation a three-year warrant to purchase up to 237,170 shares of common stock. National Securities Corporation is a selling stockholder.
No shares of Series A Preferred Stock were outstanding as of November 19, 2020.
Anti-Takeover Effects of Certain Provisions of Delaware Law and Our Charter Documents
Provisions of Delaware law and our charter documents could have the effect of delaying or preventing a third party from acquiring us, even if the acquisition would benefit our stockholders. These provisions may delay, defer or prevent a tender offer or takeover attempt of our Company that a stockholder might consider in his, her or its best interest, including those attempts that might result in a premium over the market price for the shares held by our stockholders. These provisions are intended to enhance the likelihood of continuity and stability in the composition of our Board and in the policies formulated by the Board and to discourage types of transactions that may involve our actual or threatened change of control. These provisions are designed to reduce our vulnerability to an unsolicited proposal for a takeover that does not contemplate the acquisition of all of our outstanding shares, or an unsolicited proposal for the restructuring or sale of all or part of us.
Effect of Delaware Anti-Takeover Statute. We are subject to Section 203 of the DGCL, an anti-takeover law. In general, Section 203 prohibits a Delaware corporation from engaging in any business combination (as defined below) with any interested stockholder (as defined below) for a period of three years following the date that the stockholder became an interested stockholder, unless:
| · | prior to that date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; |
| · | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares of voting stock outstanding (but not the voting stock owned by the interested stockholder) those shares owned by persons who are directors and officers and by excluding employee stock plans in which employee participants do not have the right to determine whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
| · | on or subsequent to that date, the business combination is approved by the board of directors of the corporation and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder. |
Section 203 defines “business combination” to include the following:
| · | any merger or consolidation involving the corporation and the interested stockholder; |
| · | any sale, lease, exchange, mortgage, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder; |
| · | subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; |
| · | subject to limited exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or |
| · | the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation. |
In general, Section 203 defines an “interested stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation, or who beneficially owns 15% or more of the outstanding voting stock of the corporation at any time within a three-year period immediately prior to the date of determining whether such person is an interested stockholder, and any entity or person affiliated with or controlling or controlled by any of these entities or persons.
Our Charter Documents.
Effects of authorized but unissued common stock and blank check preferred stock. One of the effects of the existence of authorized but unissued common stock and undesignated preferred stock may be to enable our Board to make more difficult or to discourage an attempt to obtain control of our Company by means of a merger, tender offer, proxy contest or otherwise, and thereby to protect the continuity of management. If, in the due exercise of its fiduciary obligations, the Board were to determine that a takeover proposal was not in our best interest, such shares could be issued by the Board without stockholder approval in one or more transactions that might prevent or render more difficult or costly the completion of the takeover transaction by diluting the voting or other rights of the proposed acquirer or insurgent stockholder group, by putting a substantial voting block in institutional or other hands that might undertake to support the position of the incumbent Board, by effecting an acquisition that might complicate or preclude the takeover, or otherwise.
In addition, our certificate of incorporation grants our Board broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The following table sets forthissuance of additional shares of preferred stock could decrease the amount of earnings and assets available for each selling stockholder, the name, the number and percentagedistribution to holders of shares of common stock. The issuance also may adversely affect the rights and powers, including voting rights, of those holders and may have the effect of delaying, deterring or preventing a change in control of our Company.
Cumulative Voting. Our certificate of incorporation does not provide for cumulative voting in the election of directors, which would allow holders of less than a majority of the stock beneficially ownedto elect some directors.
No Stockholder Action by Written Consent. Our certificate of incorporation expressly prohibits stockholders from acting by written consent. This means that stockholders may only act at annual or special meetings.
Vacancies. Our certificate of incorporation provides that all vacancies may be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum.
Special Meeting of Stockholders. A special meeting of stockholders may only be called by the chairman of the Board, the chief executive officer, or the Board at any time and for any purpose or purposes as shall be stated in the notice of March 20, 2017, the maximum numbermeeting, and shall be called by the secretary upon the written request of the holders of record of at least 25% of the outstanding shares of common stock. This provision could prevent stockholders from calling a special meeting because, unless certain significant stockholders were to join with them, they might not obtain the percentage necessary to request the meeting. Therefore, stockholders holding less than 25% of the issued and outstanding common stock, thatwithout the assistance of management, may be unable to propose a vote on any transaction that would delay, defer or prevent a change of control, even if the transaction were in the best interests of our stockholders.
Requirements for Advance Notification of Stockholder Nominations and Proposals. Our certificate of incorporation and bylaws have advance notice procedures with respect to stockholder proposals and nominations of candidates for election as directors, other than nominations made by or at the direction of our Board or a committee of our Board. The business to be conducted at a meeting will be limited to business properly brought before the meeting, in accordance with our certificate of incorporation and bylaws. Failure to follow the procedures set forth in our certificate of incorporation and bylaws will result in the chairman of the meeting disregarding the nomination or declaring that the proposed business will not be transacted.
Transfer Agent and Registrar
Our transfer agent and registrar for our common stock is EQ Shareowner Services.
Listing
Our common stock is listed on The Nasdaq Capital Market under the symbol “IPWR.”
10
We may issue warrants for the purchase of common stock or preferred stock. Warrants may be issued independently or together with common stock or preferred stock offered by any prospectus supplement and may be attached to or separate from any such offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent, all as will be set forth in the prospectus supplement relating to the particular issue of warrants. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders of warrants or beneficial owners of warrants. The summary of the terms of the warrants contained in this prospectus is not complete and is subject to, and is qualified in its entirety to, all provisions of the applicable warrant agreement.
Reference is made to the prospectus supplement relating to the particular issue of warrants offered pursuant to thissuch prospectus and the number and percentage of shares of common stock that would be beneficially owned after the sale of the maximum number of shares of common stock, and is based upon information provided to us by each selling stockholdersupplement for use in this prospectus. The information presented in the table is based on 13,996,782 shares of our common stock outstanding on March 20, 2017.
| Shares Beneficially Owned | Maximum Number of Shares to be Sold Hereunder | Shares Beneficially Owned After the Sale of the Maximum Number of Shares | |||
| Name of Selling Stockholder | Number | Percent | Number | Percent | |
| Executive Officers and Directors: | |||||
| R. Daniel Brdar, Chief Executive Officer and Director (1) | 331,550 | 2.3% | 39,400 | 292,150 | 2.0% |
| Timothy Burns, Chief Financial Officer (2) | 111,600 | * | 15,600 | 96,000 | * |
| William C. Alexander, Chief Technology Officer and Director (3) | 492,095 | 3.5% | 15,600 | 476,495 | 3.4% |
| Ryan K. O’Keefe, Senior Vice President, Business Development (4) | 52,100 | * | 15,600 | 36,500 | * |
| Mark Baum, Director (5) | 134,434 | * | 15,600 | 118,834 | * |
| Lon E. Bell, Director (6) | 362,293 | 2.6% | 157,600 | 204,693 | 1.5% |
| David B. Eisenhaure, Director (7) | 92,501 | * | 39,400 | 53,101 | * |
| Significant Stockholders: | |||||
| Peter A. Appel (8) | 1,929,626 | 9.99% (9) | 788,800 | 1,140,826 | 8.0% |
| Special Situations Fund III QP, L.P. (10) | 2,036,328 | (11) | 1,190,404 | 973,188 | (11) |
| Special Situations Cayman Fund, L.P. (10) | 591,941 | (11) | 346,040 | 282,899 | (11) |
| Special Situations Technology Fund, L.P. (10) | 211,700 | (11) | 123,756 | 101,126 | (11) |
| Special Situations Technology Fund II, L.P. (10) | 1,208,826 | (11) | 706,660 | 577,419 | (11) |
| Other Selling Stockholders: | |||||
| 1999 Clifford Family Trust dtd 12-22-1999 Robert C Clifford & Rachel L Clifford (12) | 20,000 | * | 20,000 | – | * |
| Alexandre Palma (13) | 19,600 | * | 19,600 | – | * |
| Alok Mahajan (14) | 19,600 | * | 19,600 | – | * |
| Andrew Nolan (15) | 19,600 | * | 19,600 | – | * |
| Andrew Schwartzberg (16) | 720,000 | 5.0% | 720,000 | – | * |
| Anthony D. Johnston (17) | 19,600 | * | 19,600 | – | * |
| Anthony J. Berni (18) | 19,600 | * | 19,600 | – | * |
| Anthony J. Brent & Alexandra H. Brent JT TEN (19) | 34,000 | * | 34,000 | – | * |
| Ballington Living Trust 08/05/14 (20) | 59,160 | * | 59,160 | – | * |
| Benjamin King (21) | 20,000 | * | 20,000 | – | * |
| Benjamin L. Padnos (22) | 97,260 | * | 80,000 | 17,260 | * |
| Bennett Living Trust (23) | 14,000 | * | 14,000 | – | * |
| Bibicoff Family Trust (24) | 17,000 | * | 17,000 | – | * |
| Brian L. Heckler (25) | 39,400 | * | 39,400 | – | * |
| Brian Weitman (26) | 100,000 | * | 100,000 | – | * |
| Broumand Family Trust ua dtd 6-8-10 (27) | 20,000 | * | 20,000 | – | * |
| Carlo Alberici (28) | 39,400 | * | 39,400 | – | * |
| Causeway Bay Capital LLC (29) | 68,000 | * | 68,000 | – | * |
| Charles Christensen (30) | 39,400 | * | 39,400 | – | * |
| Charles P. Arnold (31) | 31,520 | * | 31,520 | – | * |
| Christopher Achar (32) | 68,000 | * | 68,000 | – | * |
| Christopher D Jennings & Karen W Jennings JTWROS (33) | 17,000 | * | 17,000 | – | * |
| Cor Clearing Cust FBO Debra E Bowers IRA (34) | 19,600 | * | 19,600 | – | * |
| Craig Friou (35) | 19,600 | * | 19,600 | – | * |
| Cynthia B. Padnos Separate Property Trust (36) | 17,000 | * | 17,000 | – | * |
| Daniel Landry (37) | 137,776 | * | 34,000 | 103,776 | * |
| Daniel P. Padnos 2011 Generation Trust FBO Jonathan Padnos (38) | 37,596 | * | 34,000 | 3,596 | * |
| Daniel Padnos & Dexter Phillip JTTEN (39) | 20,000 | * | 20,000 | – | * |
| Daniel Sanker (40) | 36,877 | * | 34,000 | 2,877 | * |
| David A. Fitz (41) | 39,400 | * | 39,400 | – | * |
| David B. O’Neill (42) | 19,600 | * | 19,600 | – | * |
| David Petterson (43) | 59,160 | * | 59,160 | – | * |
| Denis Berry (44) | 120,836 | * | 120,836 | – | * |
| Denis D. Howarter & Pamela J. Howarter JTWROS (45) | 78,880 | * | 78,880 | – | * |
| Dennis T. Whalen & Linda R. Whalen JTTEN (46) | 78,880 | * | 78,880 | – | * |
| Dominador D. Tolentino Jr. (47) | 14,000 | * | 14,000 | – | * |
| Donald Cameron (48) | 39,400 | * | 39,400 | – | * |
| Donald Hulet (49) | 15,760 | * | 15,760 | – | * |
| Donald P. Favre (50) | 23,668 | * | 23,668 | – | * |
| Donald P. Sesterhenn (51) | 39,400 | * | 39,400 | – | * |
| Donald T. McKiernan (52) | 28,000 | * | 28,000 | – | * |
| Edmond Allen Morrison (53) | 27,600 | * | 27,600 | – | * |
| Emilio DiMatteo (54) | 39,400 | * | 39,400 | – | * |
| Eric A. Riso (55) | 39,400 | * | 39,400 | – | * |
| FLMM Limited (56) | 240,000 | 1.7% | 240,000 | – | * |
| Flores-Zaballos Family Trust (57) | 28,000 | * | 28,000 | – | * |
| Francis Y. L. Chen and Peierh Penny Yang JTTEN (58) | 17,000 | * | 17,000 | – | * |
| Frederick M. Kelso (59) | 31,540 | * | 31,540 | – | * |
| Gary Sterbinsky (60) | 19,600 | * | 19,600 | – | * |
| GFLT 1999 (61) | 68,000 | * | 68,000 | – | * |
| Harold Wayne Smith Jr. (62) | 39,400 | * | 39,400 | – | * |
| Highview Ventures LLC (63) | 84,000 | * | 84,000 | – | * |
| James C. Leslie (64) | 19,600 | * | 19,600 | – | * |
| James Eric Nicely & Karen B. Nicely JTWROS (65) | 19,600 | * | 19,600 | – | * |
| James M. Koch (66) | 78,880 | * | 78,880 | – | * |
| James M. Rucker (67) | 20,000 | * | 20,000 | – | * |
| James P. Tierney (68) | 74,000 | * | 74,000 | – | * |
| James R. Aldridge (69) | 39,400 | * | 39,400 | – | * |
| James Somers (70) | 78,880 | * | 78,880 | – | * |
| Jason Kim (71) | 68,000 | * | 68,000 | – | * |
| Jason Robert Cavalier (72) | 100,000 | * | 100,000 | – | * |
| Jay Wiviott (73) | 14,000 | * | 14,000 | – | * |
| Jeffrey & Margaret Padnos 2010 Generation Trust FBO Benjamin Padnos (74) | 23,596 | * | 20,000 | 3,596 | * |
| Jeffrey & Margaret Padnos 2010 Generation Trust FBO Joshua Padnos (75) | 23,596 | * | 20,000 | 3,596 | * |
| Jeffrey & Margaret Padnos 2010 Generation Trust FBO Rebecca Padnos (76) | 23,596 | * | 20,000 | 3,596 | * |
| Jeffrey & Margaret Padnos 2010 Generation Trust FBO Samuel Padnos (77) | 23,596 | * | 20,000 | 3,596 | * |
| Jeffrey E. Kuhlin (78) | 19,600 | * | 19,600 | – | * |
| Jeffrey L. Miller & Khirsten N. Zar JTTEN (79) | 19,600 | * | 19,600 | – | * |
| Jeffrey Maroz (80) | 74,000 | * | 74,000 | – | * |
| Jeffrey S. Padnos & Margaret M. Padnos JTWROS (81) | 54,383 | * | 40,000 | 14,383 | * |
| Jeffrey Silver & Andrea Silver JTTTEN (82) | 17,000 | * | 17,000 | – | * |
| John C. Klinge (83) | 19,600 | * | 19,600 | – | * |
| John Charles David Lewis & Susan Elizabeth Kenny JTWROS (84) | 19,600 | * | 19,600 | – | * |
| John F. McCarthy (85) | 19,600 | * | 19,600 | – | * |
| John J. Hancock (86) | 19,600 | * | 19,600 | – | * |
| John Richard Stamm (87) | 19,600 | * | 19,600 | – | * |
| Jonathan E. Ansbacher (88) | 39,400 | * | 39,400 | – | * |
| Jorge Morazzani (89) | 19,600 | * | 19,600 | – | * |
| Jose M. Martinez (90) | 19,600 | * | 19,600 | – | * |
| Joseph A. Muscat (91) | 27,600 | * | 27,600 | – | * |
| Joseph C. Atkinson (92) | 19,600 | * | 19,600 | – | * |
| Joseph M. Diangelo (93) | 19,600 | * | 19,600 | – | * |
| Joseph Michalczyk (94) | 19,600 | * | 19,600 | – | * |
| Joseph S. McLaughlan (95) | 39,400 | * | 39,400 | – | * |
| Keith A. Belote (96) | 15,760 | * | 15,760 | – | * |
| Keith Jackson (97) | 118,340 | * | 118,340 | – | * |
| Keith O. Newton (98) | 19,600 | * | 19,600 | – | * |
| Kepmen Capital (99) | 50,000 | * | 50,000 | – | * |
| Kevin A. Healy (100) | 19,600 | * | 19,600 | – | * |
| Kevin J. Herzberg (101) | 19,600 | * | 19,600 | – | * |
| Kevin J. Schwartz (102) | 23,668 | * | 23,668 | – | * |
| Kevin Leung (103) | 96,766 | * | 68,000 | 28,766 | * |
| Kevin M. Borkowski (104) | 19,600 | * | 19,600 | – | * |
| Kevin M. Mackenzie (105) | 39,400 | * | 39,400 | – | * |
| Kim E. Tobler (106) | 19,600 | * | 19,600 | – | * |
| Korbel Capital LLC (107) | 34,000 | * | 34,000 | – | * |
| Kurtis S. Krentz (108) | 39,400 | * | 39,400 | – | * |
| Lee Kay Kolligan (109) | 30,000 | * | 30,000 | – | * |
| London Family Trust (110) | 68,000 | * | 68,000 | – | * |
| Luther King Capital (111) | 118,200 | * | 118,200 | – | * |
| Marathon Micro Fund LP (112) | 270,000 | 1.9% | 270,000 | – | * |
| Mario R. Dell’Aera Jr. (113) | 118,340 | * | 118,340 | – | * |
| Marios Karayannis (114) | 19,600 | * | 19,600 | – | * |
| Mark A. Herndon & Sarah Herndon JTWROS (115) | 19,600 | * | 19,600 | – | * |
| Mark Boyer (116) | 78,880 | * | 78,880 | – | * |
| Mark R. Demich (117) | 39,400 | * | 39,400 | – | * |
| Matthew Antoun (118) | 50,000 | * | 50,000 | – | * |
| Matthew Hayden (119) | 140,787 | * | 130,000 | 10,787 | * |
| Matthew W. Cambi (120) | 39,400 | * | 39,400 | – | * |
| Maz Partners LP (121) | 39,400 | * | 39,400 | – | * |
| Michael Burwell (122) | 78,880 | * | 78,880 | – | * |
| Michael E. McLaughlin (123) | 19,600 | * | 19,600 | – | * |
| Michael Ebedes (124) | 19,600 | * | 19,600 | – | * |
| Michael Fahey (125) | 39,400 | * | 39,400 | – | * |
| Michael J. Muldoon & Pamela J. Muldoon JTWROS (126) | 19,600 | * | 19,600 | – | * |
| Michael Joseph Cavalier Jr. (127) | 68,000 | * | 68,000 | – | * |
| Michael L. Desautels (128) | 19,600 | * | 19,600 | – | * |
| Michael P. Quackenbush Jr. (129) | 39,400 | * | 39,400 | – | * |
| Michael Sean Browning (130) | 20,000 | * | 20,000 | – | * |
| Michael Snow (131) | 19,600 | * | 19,600 | – | * |
| Miles E. Everson (132) | 19,600 | * | 19,600 | – | * |
| Molly Richardson (133) | 253,200 | 1.8% | 253,200 | – | * |
| National Securities Corporation (134) | 237,170 | 1.7% | 237,170 | – | * |
| Nekimi Equity Growth Fund I LLC (135) | 60,000 | * | 60,000 | – | * |
| NFS/FMTC Rollover IRA FBO Anthony C Scibelli (136) | 17,000 | * | 17,000 | – | * |
| NFS/FMTC FBO Robert C Clifford Rollover IRA (137) | 97,668 | * | 40,000 | 57,668 | * |
| NFS/FMTC Rollover IRA FBO Keith V Archer (138) | 28,000 | * | 28,000 | – | * |
| NFS/FMTC Rollover IRA FBO James P Miller (139) | 19,600 | * | 19,600 | – | * |
| NFS/FMTC Roth IRA FBO David S Nagelberg (140) | 96,000 | * | 96,000 | – | * |
| NFS/FMTC Sep IRA FBO Ankur Desai (141) | 90,683 | * | 34,000 | 56,683 | * |
| NFS/FMTC Sep IRA FBO Erick Richardson (142) | 176,800 | 1.3% | 176,800 | – | * |
| Nudge Capital Fund LP (143) | 78,800 | * | 78,800 | – | * |
| Omid Yasheral (144) | 34,000 | * | 34,000 | – | * |
| Paul E. Linthorst (145) | 19,600 | * | 19,600 | – | * |
| Paul P. Frank III & Colleen B. Frank Ten Ent (146) | 19,600 | * | 19,600 | – | * |
| Paul Ramos (147) | 19,600 | * | 19,600 | – | * |
| Per Magnus Andersson (148) | 28,000 | * | 28,000 | – | * |
| Peter A. Casey (149) | 23,660 | * | 23,660 | – | * |
| Peter C. Gerlach (150) | 24,000 | * | 24,000 | – | * |
| Phillip Mervis & Sheryl Facktor (151) | 15,600 | * | 15,600 | – | * |
| Pickett Henneberger Family Trust dtd 4-24-2013 (152) | 34,000 | * | 34,000 | – | * |
| Purcell Trust ua dtd 9-19-2007 (153) | 14,000 | * | 14,000 | – | * |
| R&A Chade Family Trust Richard Chade Trustee (154) | 34,000 | * | 34,000 | – | * |
| Rajib A. Thadani (155) | 19,600 | * | 19,600 | – | * |
| Raymond Todd Barrett (156) | 19,600 | * | 19,600 | – | * |
| Rich Shappard (157) | 19,600 | * | 19,600 | – | * |
| Richard & Esther Blanchard 1990 Trust (158) | 39,400 | * | 39,400 | – | * |
| Richard J. Poccia (159) | 25,200 | * | 25,200 | – | * |
| Richard Jeanneret (160) | 39,400 | * | 39,400 | – | * |
| Robert W. Kastenschmidt (161) | 19,600 | * | 19,600 | – | * |
| Ronald J. Ciasulli (162) | 39,400 | * | 39,400 | – | * |
| RP Capital (163) | 170,000 | 1.2% | 170,000 | – | * |
| Russell D. Moore (164) | 39,400 | * | 39,400 | – | * |
| Ryan Hong (165) | 17,000 | * | 17,000 | – | * |
| Salvatore A. Melilli (166) | 15,760 | * | 15,760 | – | * |
| Samir A. Mammadov (167) | 39,400 | * | 39,400 | – | * |
| Sanford D. Greenberg (168) | 20,000 | * | 20,000 | – | * |
| Scott H. Shadrick Trust & Thomas B. Livermore Trust JTWROS (169) | 20,000 | * | 20,000 | – | * |
| Scott J. Gehsmann (170) | 19,600 | * | 19,600 | – | * |
| Shane Broumand (171) | 68,000 | * | 68,000 | – | * |
| Shawn R. McAllister & Amanda McAllister JTTEN (172) | 28,000 | * | 28,000 | – | * |
| Sivan Padnos Caspi & Tal A. Caspi JTWROS (173) | 35,438 | * | 34,000 | 1,438 | * |
| Stephen V. Zawoyski (174) | 19,600 | * | 19,600 | – | * |
| Stephen Walker Family Trust (175) | 34,000 | * | 34,000 | – | * |
| Steven Chapin & Kristin Chapin Family Trust (176) | 200,000 | 1.4% | 200,000 | – | * |
| Tanvir Ali Master (177) | 19,600 | * | 19,600 | – | * |
| Targeted Investments 2028 LLC (178) | 19,600 | * | 19,600 | – | * |
| The Alfie Trust D/O/E 5/10/12 (179) | 17,000 | * | 17,000 | – | * |
| The Blair Family Trust u/a dtd 3-21-2011 (180) | 20,000 | * | 20,000 | – | * |
| The Fein Family Trust (181) | 17,000 | * | 17,000 | – | * |
| The Handler Revocable Trust (182) | 17,000 | * | 17,000 | – | * |
| Todd G. Bari (183) | 19,600 | * | 19,600 | – | * |
| Todd J. Anderson (184) | 19,600 | * | 19,600 | – | * |
| Ungkeun A. Lee (185) | 19,600 | * | 19,600 | – | * |
| Uwe Uhmeyer (186) | 43,442 | * | 15,600 | 27,842 | * |
| Valley High Limited Partnership (187) | 284,000 | 2.0% | 284,000 | – | * |
| Wendell Young (188) | 19,600 | * | 19,600 | – | * |
| William A. Clifford (189) | 17,000 | * | 17,000 | – | * |
| William E. Marx (190) | 19,600 | * | 19,600 | – | * |
| YKA Partners LLC (191) | 34,000 | * | 34,000 | – | * |
| Yogesh Gupta (192) | 19,600 | * | 19,600 | – | * |
| Zhuge Liang LLC (193) | 20,000 | * | 20,000 | – | * |
| 12,095,682 | |||||
| * Represents beneficial ownership of less than one percent. | |||||
| · | the specific designation and aggregate number of, and the offering price at which we will issue, the warrants; |
| the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| · | the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
| · | whether the warrants are to be sold separately or with other securities as parts of |
| · | whether the warrants will be issued in definitive or global form or in any combination of |
| · | any applicable material U.S. federal income tax consequences; |
| · | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents; |
| · | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; |
| · | the designation and |
| · | if applicable, the designation and terms of preferred stock or common stock with which the warrants are issued and the number of warrants issued with each security; |
| if applicable, the date from and after which any warrants issued as part of |
| · | the number of shares of |
| · | if applicable, the minimum or maximum amount of the |
| · | information with respect to |
| · | the antidilution provisions of, and other provisions for changes to or adjustment in the exercise price of, the warrants, if any; |
| any redemption or call provisions; and |
| · | any additional terms of the |
We may, from time to time, sell, transferissue units comprised of one or otherwise disposemore of any or all of their shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositionsother securities that may be offered under this prospectus, in any combination. Each unit may also include debt obligations of third parties, such as U.S. Treasury securities. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately at any time, or at any time before a specified date or other specific circumstances occur. The summary of the terms of the units contained in this prospectus is not complete and is subject to, and is qualified in its entirety by, all provisions of the applicable unit agreements.
Any prospectus supplement related to any particular units will describe, among other things:
| · | the material terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
| · | any material provisions relating to the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; |
| · | if appropriate, any special U.S. federal income tax considerations applicable to the units; and |
| · | any material provisions of the governing unit agreement that differ from those described above. |
The applicable provisions described in this section, as well as those described under “Description of Capital Stock” and “Description of Warrants” will apply to each unit and to each security included in each unit, respectively.
13
We may sell the securities being offered hereby:
| · | directly to purchasers; |
| · | through agents; |
| · | through dealers; |
| · | through underwriters; |
| · | through a combination of any of the above methods of sale; or |
| · | through any other methods described in a prospectus supplement. |
We will identify the specific plan of distribution, including any direct purchasers, agents, dealers, underwriters and, if applicable, their compensation, the purchase price, the net proceeds to us, the public offering price, and any discounts or concessions allowed or reallowed or paid to dealers, in a prospectus supplement.
The distribution of securities may be effected, from time to time, in one or more transactions, including block transactions and transactions on Nasdaq or any other organized market where the securities may be traded. The securities may be sold at a fixed price or prices, which may be changed, or at prevailing market prices prevailing at the time of sale, at prices relatedrelating to the prevailing market price,prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts, concessions or commissions to be received from us or from the purchasers of the securities.
Offers to purchase the securities may be solicited directly by us or by agents designated by us from time to time. We will, in the prospectus supplement relating to an offering, name any agent that could be viewed as an underwriter under the Securities Act and describe any commissions we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis.
If a dealer is utilized in the sale of the securities in respect of which this prospectus is delivered, we will sell the securities to the dealer, as principal. The dealer, which may be deemed to be an underwriter as that term is defined in the Securities Act, may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. Dealer trading may take place in certain of the securities, including securities not listed on any securities exchange.
If an underwriter or underwriters are utilized in the sale, we will execute an underwriting agreement with the underwriters at the time of sale or at negotiated prices.
We may directly solicit offers to purchase the securities and if they default inwe may make sales of securities directly to institutional investors or others. These persons may be deemed to be underwriters within the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provisionmeaning of the Securities Act amending the list of selling stockholderswith respect to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
Underwriters, dealers, agents dealer or underwriter, any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
Any person participating in the distribution of common stock registered under the registration statement that includes this prospectus will be subject to applicable provisions of the sharesExchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of our common stock by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common stock. These restrictions may affect the marketability of our common stock and the ability of any person or entity to engage in market-making activities with respect to our common stock.
In order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with the offering, creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at any time.
15
Unless otherwise stated in an accompanying prospectus supplement, the validity of the securities being offered by this prospectus.
The audited financial statements as of December 31, 20162019 and 20152018 and for each of the two years thenin the period ended December 31, 2019 incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the report of Gumbiner Savett Inc., an independent registered public accounting firm, upon the authority of said firm as experts in accounting and auditing in giving said report.
We file with, or furnish to, the SEC reports including our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to those reports pursuant to Section 13(a) or 15(d) of the registration statementExchange Act. These reports are available free of charge on Form S-3our corporate website, www.idealpower.com, as soon as reasonably practicable after they are electronically filed with or furnished to the SEC. Copies of any materials we filedfile with the SEC under the Securities Act and does not contain all thecan be obtained free of charge at www.sec.gov. The foregoing website addresses are provided as inactive textual references only. The information set forth in the registration statement. Whenever a reference is madeprovided on our website (or any other website referred to in this prospectus toor any of our contracts, agreements or other documents, the reference mayapplicable prospectus supplement) is not be complete and you should refer to the exhibits that are a part of the registration statementthis prospectus or the exhibits to the reports or other documentsany applicable prospectus supplement and is not incorporated by reference intoas part of this prospectus for a copy of such contract, agreement or other document. Because we are subject to the information and reporting requirements of the Exchange Act, we file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov. You may also read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room.
The SEC allows us to incorporate“incorporate by referencereference” the information we file with it,them, which means that we can disclose important information to you by referring you to another document that we have filed separately with the SEC. You should read thethose documents. The information incorporated by reference because it is an importantconsidered to be part of this prospectus.prospectus and any accompanying prospectus supplement, and later information filed with the SEC will automatically update and supersede this information. We incorporate by reference the following information or documents that we havelisted below and all documents subsequently filed with the SEC (Commission File No. 001-36216):
| · | our Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on March 31, 2020; |
| · | our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2020, June 30, 2020 and September 30, 2020 filed with the SEC on May 14, 2020, August 13, 2020 and November 13, 2020, respectively; |
| · | our Definitive Proxy Statement on Schedule 14A for the 2020 Annual Meeting of Stockholders, filed with the SEC on April 29, 2020, (only with respect to information required to be filed by Part III of our Annual Report on Form 10-K for the year ended December 31, 2019); |
| · | our Current Reports on Form 8-K filed with the SEC on April 2, 2020, April 14, 2020, April 29, 2020, May 8, 2020, June 18, 2020 and August 3, 2020; and |
| · | the description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on November 21, 2013 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description (including Exhibit 4.5 to our Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on March 31, 2020). |
You may request a copy of the documentsthese filings (other than an exhibit to a filing unless that have beenexhibit is specifically incorporated by reference into this prospectus, including exhibitsthat filing) at no cost, by writing to these documents. You should direct any requests for copies to:
Ideal Power Inc.
4120 Freidrich Lane, Suite 100
Austin, TXTexas, 78744
(512) 264-1542
Attention: Chief Financial Officer
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution. |
The following table sets forth the estimated costs and expenses payable by the Registrantus in connection with the offeringissuance and distribution of the securities being registered.covered by this Registration Statement, other than underwriting discounts and commissions. All amountsexpenses are estimates, except the SEC registration fee.
| SEC Registration Fee | $ | 2,727.50 | ||
| Printing Expenses | * | |||
| Legal Fees and Expenses | * | |||
| Accounting Fees and Expenses | * | |||
| Transfer Agent and Registrar Fees and Expenses | * | |||
| Trustee Fees and Expenses | * | |||
| Stock Exchange and Other Listing Fees | * | |||
| Miscellaneous | * | |||
| Total | $ | * |
| SEC registration fee | $ | 4,486 | ||
| Accounting fees and expenses | 5,000 | |||
| Legal fees and expenses | 10,000 | |||
| Transfer Agent fees and expenses | 500 | |||
| Miscellaneous | 500 | |||
| Total | $ | 20,486 | ||
| * | These expenses are calculated in part based on the number of issuances and the amount of securities offered and accordingly cannot be estimated at this time. |
| Item 15. | Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law (the “DGCL”) provides, in general, that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the corporation. In the case of a derivative action, a Delaware corporation may indemnify any such person against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification will be made in respect of any claim, issue or matter as to which such person will have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or any other court in which such action was brought determines such person is fairly and reasonably entitled to indemnity for such expenses. The Delaware General Corporation LawDGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
The registrant’s certificate of incorporation, as amended, and bylaws provide that weit will indemnify ourits directors, officers, employees and agents to the extent and in the manner permitted by the provisions of the Delaware General Corporation Law,DGCL, as amended from time to time, subject to any permissible expansion or limitation of such indemnification, as may be set forth in any stockholders’ or directors’ resolution or by contract. Any repeal or modification of these provisions approved by ourthe registrant’s stockholders will be prospective only and will not adversely affect any limitation on the liability of any of ourthe registrant’s directors or officers existing as of the time of such repeal or modification.
The registrant’s certificate of incorporation, as amended, provides that no director is liable to the registrant or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL, except for liability (i) for any breach of the director’s duty of loyalty to the registrant 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 after the date hereof 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 Delaware General Corporation Law, as so amended.
The registrant has also obtained insurance covering ourits directors and officers for liability arising out of their respective actions.
Any underwriting agreement will provide for indemnification by the underwriters of the registrant and its officers and directors for certain liabilities arising under the Securities Act of 1933, as amended, or otherwise.
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| Item 16. | Exhibits. |
The following exhibits are filed as part of this registration statement:
| † | Filed herewith. |
| * | To be filed by amendment, as an exhibit to a Current Report on Form 8-K or by other applicable filing with the Securities and Exchange Commission to be incorporated by reference herein. |
| Item 17. | Undertakings. |
(a) The undersigned Registrantregistrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to:
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission, or SEC, pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
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provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement (or the most recent post-effective amendment thereof) which, individuallyis on Form S-3 or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered)Form F-3 and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fideoffering thereof.(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
| (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; |
(5) That, for the purpose of determining liability of the Registrantregistrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities,securities: the undersigned Registrantregistrant undertakes that in a primary offering of securities of the undersigned Registrantregistrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrantregistrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
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| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) The undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrantregistrant pursuant to the foregoing provisions, or otherwise, the Registrantregistrant has been advised that in the opinion of the Securities and Exchange CommissionSEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrantregistrant of expenses incurred or paid by a director, officer or controlling person of the Registrantregistrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrantregistrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by itthem is against public policy as expressed in the Securities Exchange Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Austin, State of Texas, on March 31, 2017.
| IDEAL POWER INC. | |||
| By: | /s/ R. | ||
| Name: | R. Daniel Brdar | ||
| Title: | Chief Executive Officer | ||
Each person whose signature appears below hereby constitutes and appoints R. Daniel Brdar and
Timothy Burns,Pursuant to the requirements of the Securities Act of 1933, this Registration Statement hasregistration statement and power of attorney have been signed by the following persons in the capacities and on the dates stated.
| Signature | Title | Date | ||
/s/ R. Daniel Brdar | Chief Executive Officer | |||
| R. Daniel Brdar | (Principal Executive Officer) | |||
| /s/ | Chief | November 20, 2020 | ||
| Timothy W. Burns | (Principal Financial and Accounting Officer) | |||
| /s/ David B. Eisenhaure | Director | |||
| /s/ | ||||
| /s/ | Director | |||
| Michael C. Turmelle | ||||
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| Exhibit Number | Incorporated by Reference | Filed Herewith | ||||||||||
| Exhibit Description | Form | File Number | Exhibit | Filing Date | ||||||||
| 3.1 | Delaware Certificate of Conversion including Certificate of Incorporation | S-1 | 333-190414 | 3.1 | August 6, 2013 | |||||||
| 3.2 | Bylaws of Ideal Power Inc. | S-1 | 333-190414 | 3.2 | August 6, 2013 | |||||||
| 3.3 | Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock | 8-K | 001-36216 | 3.1 | February 27, 2017 | |||||||
| 4.1 | Form of Warrant | 8-K | 001-36216 | 4.1 | February 27, 2017 | |||||||
| 5.1 | Opinion of DLA Piper LLP (US) | X | ||||||||||
| 10.1 | Purchase Agreement, dated February 24, 2017 among the Registrant and the Investors party thereto | 8-K | 001-36216 | 10.1 | February 27, 2017 | |||||||
| 10.2 | Form of Registration Rights Agreement between the Registrant and the Investors party thereto | 8-K | 001-36216 | 10.2 | February 27, 2017 | |||||||
| 10.3 | Exchange Agreement, dated February 24, 2017, by and among the Company and the common stockholders listed in Schedule 1 thereto | 8-K | 001-36216 | 10.3 | February 27, 2017 | |||||||
| 23.1 | Consent of Gumbiner Savett Inc., Independent Registered Public Accounting Firm | X | ||||||||||
| 23.2 | Consent of DLA Piper LLP (US) (included in Exhibit 5.1) | X | ||||||||||
| 24.1 | Power of Attorney (included on signature page) | X | ||||||||||