As Filed With the Securities and Exchange
Commission on June 23, 2017
Registration No. 333-[
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
_____________________
EnSync, Inc.
(Exact name of registrant as specified in
its charter)
Wisconsin
(State or other jurisdiction of incorporation)
39-1987014
(IRS Employer Identification Number)
N93 W14475 Whittaker Way
Menomonee Falls, WI 53051
(262) 253-9800
(Address, including zip code, and telephone
number,
including area code, of registrant’s principal executive
offices)
Frederick P. Vaske
Chief Administrative Officer
EnSync, Inc.
N93 W14475 Whittaker Way
Menomonee Falls, WI 53051
(262) 253-9800
(Name, address, including zip code, and
telephone
number, including area code, of agent for service)
_____________________
Please send copies of all communications
to:
Mark R. Busch, Esq.
K&L Gates LLP
214 North Tryon Street, 47
th
Floor
Charlotte, N.C. 28202
(704) 331-7440
_____________________
Approximate date of commencement of proposed
sale to the public:
From time to time after the effective date
of this Registration Statement as determined by market conditions.
If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark
if the registrant is a large accelerated filer, an accelerated file, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company
in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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(do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION
FEE
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Title of each class
of securities to
be registered(1)
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Amount
to be
registered (1)(2)(3)
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Proposed
maximum
offering
price per unit (2)(3)
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Proposed
maximum
aggregate
offering price (3)
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Amount of
registration
fee
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Debt Securities
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Preferred Stock
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Common Stock
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Warrants
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Total
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$
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25,000,000
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(4)
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$
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2,053
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(4)(5)
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(1)
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This Registration Statement also covers (i) debt securities, preferred stock and common stock that may be issued upon exercise
of warrants and (ii) such indeterminate amount of securities as may be issued upon conversion, redemption, repurchase, exchange
or exercise of any securities registered hereunder, including under any applicable anti-dilution provisions. In addition, securities
registered hereunder may be sold separately or as units with other securities registered hereunder.
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(2)
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An indeterminate number of the securities is being registered as may at various times be issued at indeterminate prices, with
an aggregate public offering price not to exceed $25,000,000 or the equivalent thereof in one or more currencies or, if any debt
securities are issued at any original issuance discount, such greater principal amount as shall result in an aggregate initial
offering price of $25,000,000.
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(3)
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Not specified as to each class of securities to be registered pursuant to General Instruction II.D of Form S-3 under the Securities
Act.
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(4)
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The $25,000,000 of securities registered hereunder for sale by the Registrant include $7,284,365 of unsold securities (the
“Unsold Securities”) registered pursuant to Registration Statement File No. 333-194706 (the “Prior Registration
Statement”) originally filed with the Securities and Exchange Commission (the “SEC”) on March 20, 2014 and subsequently
declared effective on June 25, 2014, that have not been issued and sold by the Registrant. Pursuant to Rule 415(a)(6) under the
Securities Act, $938 of filing fees previously paid in connection with the Unsold Securities will continue to be applied to the
Unsold Securities. The Registrant is also registering new securities on this Registration Statement with an aggregate offering
price of $17,715,635 (the “New Securities”), which aggregate offering price is not specified as to each class of security
(see footnote (3)).
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(5)
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Calculated pursuant to Rule 457(o) of the rules and regulations under the Securities Act for the $17,715,635 of New Securities
being registered hereunder.
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The securities registered hereunder for
sale by the Registrant include $7,284,365 of unsold securities (the “Unsold Securities”) registered pursuant to Registration
Statement File No. 333-194706 (the “Prior Registration Statement”) originally filed with the Securities and Exchange
Commission (the “SEC”) on March 20, 2014 and subsequently declared effective on June 25, 2014, that have not been issued
and sold by the Registrant. Accordingly, the Registrant is filing this new shelf Registration Statement for the purpose of continuing
to provide the Registrant with the ability to sell securities from time to time covered by this Registration Statement. The Registrant
has included in this Registration Statement the Unsold Securities registered pursuant to the Prior Registration Statement. In accordance
with SEC rules, the Registrant may continue to offer and sell securities Registered under the Prior Registration Statement during
the grace period afforded by Rule 415(a)(5). If the Registrant sells any Unsold Securities during the grace period, the Registrant
will identify in a pre-effective amendment to this Registration Statement the new amount of Unsold Securities to be carried forward
to this Registration Statement in reliance upon Rule 415(a)(6) and any new securities to be covered by this Registration Statement.
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment
which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
The information in this
prospectus is not complete and may be changed. the securities may not be sold 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
JUNE 23, 2017
$25,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
________________________
This prospectus relates to common stock,
preferred stock, debt securities and warrants that we may sell from time to time in one or more offerings up to a total public
offering price of $25,000,000 on terms to be determined at the time of sale. We will provide specific terms of these securities
in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest. This prospectus
may not be used to offer and sell securities unless accompanied by a prospectus supplement for those securities.
Our common stock trades on the NYSE MKT
under the symbol “ESNC”. As of June 22, 2017, the aggregate market value of our outstanding common stock held by non-affiliates
was $19,932,125 based on 48,010,347 shares of outstanding common stock, of which 28,073,416 shares are held by non-affiliates,
and a per share price of $0.71, which was the closing sale price of our common stock as quoted on the NYSE MKT on May 5, 2017.
We have not sold any securities during the prior 12 calendar month period that ends on and includes the date hereof.
These securities may be sold directly by
us, through dealers or agents designated from time to time, to or through underwriters or through a combination of these methods.
See “Plan of Distribution” in this prospectus. We may also describe the plan of distribution for any particular offering
of these securities in any applicable prospectus supplement. If any agents, underwriters or dealers are involved in the sale of
any securities in respect of which this prospectus is being delivered, we will disclose their names and the nature of our arrangements
with them in a prospectus supplement. The net proceeds we expect to receive from any such sale will also be included in a prospectus
supplement.
Investing in our securities involves
certain risks. See “Risk Factors” beginning on page 3 of this prospectus and in any prospectus supplement before you
make your investment decision.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus
is
, 2017
.
Table of Contents
WHERE
YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports,
proxy statements and other information with the Securities and Exchange Commission (the “SEC”). You can inspect and
copy these reports, proxy statements and other information 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 Public Reference Room. The SEC also maintains
a web site that contains reports, proxy and information statements and other information regarding issuers, such as EnSync (www.sec.gov).
Our web site is located at www.ensync.com. The information contained on our web site is not part of this prospectus.
This prospectus “incorporates by reference”
certain information that we have filed with the SEC under the Securities Exchange Act of 1934. This means we are disclosing important
information to you by referring you to those documents. We incorporate by reference the documents listed below and any future filings
made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until the offering is terminated:
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Annual Report on Form 10-K for the fiscal year ended June 30, 2016 as filed on September 08, 2016;
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The information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended June 30, 2016
from our definitive proxy statement on Schedule 14A, as filed on October 11, 2016;
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Quarterly Reports on Form 10-Q for the quarters ended September 30, 2016 as filed on November 10, 2016, December 31, 2016 as
filed on February 14, 2017 and March 31, 2017 as filed on May 11, 2017;
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Current Reports on Form 8-K filed on September 22, 2016, October 11, 2016, November 15, 2016, May 9, 2017 and June 23,
2017 (other
than the
portions of
those documents furnished but deemed not to have been filed); and
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The description of our common stock contained in our Registration Statement on Form 8-A, filed with the SEC pursuant to
Section 12(b) of the Exchange Act on June 13, 2007, including any further amendment or report filed hereafter for the purpose
of updating such description.
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You should rely only on the information
incorporated by reference or provided in this prospectus. We have authorized no one to provide you with different information.
You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of this
document. All documents that we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus or after the date of the registration statement of which this prospectus forms a part and prior to the termination of
the offering will be deemed to be incorporated in this prospectus by reference and will be a part of this prospectus from the date
of the filing of the document. Any statement contained in a document incorporated or deemed to be incorporated by reference in
this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained
in this prospectus or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this
prospectus modifies or supersedes that statement. Any statement that is modified or superseded will not constitute a part of this
prospectus, except as modified or superseded.
We will provide, upon written or oral request,
without charge to you, including any beneficial owner to whom this prospectus is delivered, a copy of any or all of the documents
incorporated herein by reference other than the exhibits to those documents, unless the exhibits are specifically incorporated
by reference into the information that this prospectus incorporates. You should direct a request for copies to us at Attention:
Secretary, N93 W14475 Whittaker Way, Menomonee Falls, WI 53051 or you may call us at (262) 253-9800.
FORWARD-LOOKING
STATEMENTS
Certain information set forth in this prospectus
or incorporated by reference in this prospectus may contain forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), that are intended to be covered by the “safe harbor” created by those
sections. Forward-looking statements, which are based on certain assumptions and describe our future plans, strategies and expectations,
can generally be identified by the use of forward-looking terms such as “believe,” “expect,” “may,”
“will,” “should,” “would,” “could,” “seek,” “intend,” “plan,”
“estimate,” “goal,” “anticipate,” “project” or other comparable terms. Forward-looking
statements involve inherent risks and uncertainties which could cause actual results to differ materially from those in the forward-looking
statements, as a result of various factors including those risks and uncertainties included in this prospectus under the caption
“Risk Factors,” and those risks and uncertainties described in the documents incorporated by reference into this prospectus.
We urge you to consider those risks and uncertainties in evaluating our forward-looking statements. All subsequent written and
oral forward-looking statements attributable to us or to persons acting on our behalf are expressly qualified in their entirety
by the applicable cautionary statements. We further caution readers not to place undue reliance upon any such forward-looking statements,
which speak only as of the date made. Except as otherwise required by the federal securities laws, we disclaim any obligation or
undertaking to publicly release any updates or revisions to any forward-looking statement contained herein or in the accompanying
prospectus (or elsewhere) to reflect any change in our expectations with regard thereto or any change in events, conditions or
circumstances on which any such statement is based.
PROSPECTUS
SUMMARY
This prospectus is part of a registration
statement on Form S-3 that we filed with the SEC utilizing a “shelf” registration process. Under this shelf process,
we may from time to time, sell any combination of securities described in this prospectus in one or more offerings. This prospectus
provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of the securities being offered.
We may add or modify in a prospectus supplement
any of the information contained in this prospectus or in the documents that we have incorporated into this prospectus by reference.
If there is any inconsistency between the information in this prospectus and a prospectus supplement, you should rely on the information
in that prospectus supplement. You should read both this prospectus and any applicable prospectus supplement together with additional
information described above under the heading “Where You Can Find More Information.”
When acquiring any securities discussed
in this prospectus, you should rely on the information provided in this prospectus and the prospectus supplement, including the
information incorporated by reference. Neither we, nor any underwriters or agents, have authorized anyone to provide you with different
information. We are not offering the securities in any state where such an offer is prohibited. You should not assume that the
information in this prospectus, any prospectus supplement, or any document incorporated by reference, is truthful or complete at
any date other than the date mentioned on the cover page of those documents. You should also carefully review the section entitled
“Risk Factors”, which highlights certain risks associated with an investment in our securities, to determine whether
an investment in our securities is appropriate for you.
References in this prospectus to “EnSync”,
“EnSync Energy” , “EnSync Energy Systems”, the “Company”, “we”, “us”
and “our” are to EnSync, Inc. and its subsidiaries.
RISK
FACTORS
Investing in our securities involves risk.
See the risk factors described in our Annual Report on Form 10-K for our most recent fiscal year (together with any material changes
thereto contained in subsequent filed Quarterly Reports on Form 10-Q) and those contained in our other filings with the SEC, which
are incorporated by reference in this prospectus and any accompanying prospectus supplement.
The prospectus supplement applicable to
each type or series of securities we offer may contain a discussion of risks applicable to the particular types of securities that
we are offering under that prospectus supplement. Prior to making a decision about investing in our securities, you should carefully
consider the specific factors discussed under the caption “Risk Factors” in the applicable prospectus supplement, together
with all of the other information contained in the prospectus supplement or appearing or incorporated by reference in this prospectus.
These risks could materially affect our business, results of operations or financial condition and cause the value of our securities
to decline. You could lose all or part of your investment.
THE
COMPANY
EnSync, Inc. (NYSE MKT: ESNC), dba EnSync
Energy Systems, is creating the future of electricity with innovative distributed energy resource (DER) systems and internet of
energy (IOE) control platforms. EnSync Energy ensures the most cost-effective and resilient electricity, delivered from an electrical
infrastructure that prioritizes the use of all available resources, such as renewables, energy storage and the utility grid. As
project developer, EnSync Energy’s distinctive engagement methodology encompasses load analysis, system design consulting,
and technical and financial modeling to ensure energy systems are sized and optimized to meet our customers’ objectives for
value and performance. Proprietary direct current (DC) power control hardware, energy management software, and extensive experience
with numerous energy storage technologies uniquely positions EnSync Energy to deliver fully integrated systems that provide for
efficient design, procurement, commissioning, and ongoing operation. EnSync Energy’s IOE control platform adapts easily to
ever-changing generation and load variables, as well as changes in utility prices and programs, ensuring the means to make or save
money behind-the-meter, while concurrently providing utilities the opportunity to use DERs for an array of grid enhancing services.
In addition to direct system sales, EnSync Energy includes power purchase agreements (PPAs) in its portfolio of offerings, which
enables electricity savings for customers and provides a stable financial yield for investors. EnSync Energy is a global corporation,
with joint venture
Meineng Energy
in AnHui, China, and energy project development subsidiary
Holu Energy LLC
in Hawaii,
and
DCfusion LLC
, a power system engineering and design, consultancy and policy firm
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USE
OF PROCEEDS
We currently intend to use the estimated
net proceeds from the sale of these securities for general corporate and working capital purposes, including to fund strategic
initiatives that we may undertake from time to time and for product development. We have not yet determined the amount of net proceeds
to be used specifically for any of the foregoing purposes. Accordingly, our management will have significant discretion and flexibility
in applying the net proceeds from the sale of these securities. Our plans to use the estimated net proceeds from the sale of these
securities may change, and if they do, we will update this information in a prospectus supplement.
DESCRIPTION
OF DEBT SECURITIES WE MAY OFFER
We may sell the securities being offered
pursuant to this prospectus directly to purchasers, to or through underwriters, through dealers or agents, or through a combination
of such methods. The prospectus supplement with respect to the securities being offered will set forth the terms of the offering
of those securities, including the names of the underwriters, dealers or agents, if any, the purchase price, the net proceeds to
us, any underwriting discounts and other items constituting underwriters’ compensation, the initial public offering price,
any discounts or concessions allowed or reallowed or paid to dealers and any securities exchanges on which such securities may
be listed.
General
The debt securities that we may issue will
constitute debentures, notes, bonds or other evidences of indebtedness of EnSync, to be issued in one or more series, which may
include senior debt securities, subordinated debt securities and senior subordinated debt securities. The particular terms of any
series of debt securities we offer, including the extent to which the general terms set forth below may be applicable to a particular
series, will be described in a prospectus supplement relating to such series.
Debt securities that we may issue will be
issued under an indenture between us and a trustee qualified to act as such under the Trust Indenture Act of 1939. We have filed
the form of the indenture as an exhibit to the registration statement of which this prospectus is a part. When we refer to the
“indenture” in this prospectus, we are referring to the indenture under which your debt securities are issued as supplemented
by any supplemental indenture applicable to your debt securities. We will provide the name of the trustee in any prospectus supplement
related to the issuance of debt securities, and we will also provide certain other information related to the trustee, including
describing any relationship we have with the trustee, in such prospectus supplement.
THE FOLLOWING DESCRIPTION IS A SUMMARY OF
THE MATERIAL PROVISIONS OF THE INDENTURE. IT DOES NOT RESTATE THE INDENTURE IN ITS ENTIRETY. THE INDENTURE IS GOVERNED BY THE TRUST
INDENTURE ACT OF 1939. THE TERMS OF THE DEBT SECURITIES INCLUDE THOSE STATED IN THE INDENTURE AND THOSE MADE PART OF THE INDENTURE
BY REFERENCE TO THE TRUST INDENTURE ACT. WE URGE YOU TO READ THE INDENTURE BECAUSE IT, AND NOT THIS DESCRIPTION, DEFINES YOUR RIGHTS
AS A HOLDER OF THE DEBT SECURITIES.
Information You Will
Find In The Prospectus Supplement
The indenture provides that we may issue
debt securities from time to time in one or more series and that we may denominate the debt securities and make them payable in
foreign currencies. The indenture does not limit the aggregate principal amount of debt securities that can be issued thereunder.
The prospectus supplement for a series of debt securities will provide information relating to the terms of the series of debt
securities being offered, which may include:
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the title and denominations of the debt securities of the series;
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any limit on the aggregate principal amount of the debt securities of the series;
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the date or dates on which the principal and premium, if any, with respect to the debt securities of the series are payable
or the method of determination thereof;
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the rate or rates, which may be fixed or variable, at which the debt securities of the series shall bear interest, if any,
or the method of calculating and/or resetting such rate or rates of interest;
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the dates from which such interest shall accrue or the method by which such dates shall be determined and the duration of the
extensions and the basis upon which interest shall be calculated;
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the interest payment dates for the series of debt securities or the method by which such dates will be determined, the terms
of any deferral of interest and any right of ours to extend the interest payments periods;
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the place or places where the principal and interest on the series of debt securities will be payable;
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the terms and conditions upon which debt securities of the series may be redeemed, in whole or in part, at our option or otherwise;
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our obligation, if any, to redeem, purchase, or repay debt securities of the series pursuant to any sinking fund or other specified
event or at the option of the holders and the terms of any such redemption, purchase, or repayment;
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the terms, if any, upon which the debt securities of the series may be convertible into or exchanged for other securities,
including, among other things, the initial conversion or exchange price or rate and the conversion or exchange period;
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if the amount of principal, premium, if any, or interest with respect to the debt securities of the series may be determined
with reference to an index or formula, the manner in which such amounts will be determined;
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if any payments on the debt securities of the series are to be made in a currency or currencies (or by reference to an index
or formula) other than that in which such securities are denominated or designated to be payable, the currency or currencies (or
index or formula) in which such payments are to be made and the terms and conditions of such payments;
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any changes or additions to the provisions of the indenture dealing with defeasance, including any additional covenants that
may be subject to our covenant defeasance option;
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the currency or currencies in which payment of the principal and premium, if any, and interest with respect to debt securities
of the series will be payable, or in which the debt securities of the series shall be denominated, and the particular provisions
applicable thereto in accordance with the indenture;
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the portion of the principal amount of debt securities of the series which will be payable upon declaration of acceleration
or provable in bankruptcy or the method by which such portion or amount shall be determined;
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whether the debt securities of the series will be secured or guaranteed and, if so, on what terms;
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any addition to or change in the events of default with respect to the debt securities of the series;
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the identity of any trustees, authenticating or paying agents, transfer agents or registrars;
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the applicability of, and any addition to or change in, the covenants currently set forth in the indenture;
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the subordination, ranking or priority, if any, of the debt securities of the series and terms of the subordination;
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any other terms of the debt securities of the series which are not prohibited by the indenture; and
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whether securities of the series shall be issuable as registered securities or bearer securities (with or without interest
coupons), and any restrictions applicable to the offering, sale or delivery of such bearer securities and the terms upon which
such bearer securities of a series may be exchanged for registered securities, and vice versa.
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Holders of debt securities may present debt
securities for exchange in the manner, at the places, and subject to the restrictions set forth in the debt securities, the indenture,
and the prospectus supplement. We will provide these services without charge, other than any tax or other governmental charge payable
in connection therewith, but subject to the limitations provided in the indenture, any board resolution establishing such debt
securities and any applicable indenture supplement. Debt securities in bearer form and the coupons, if any, appertaining thereto
will be transferable by delivery.
Senior Debt
We may issue senior debt securities under
the indenture and any coupons that will constitute part of our senior debt. Unless otherwise set forth in the applicable indenture
supplement and described in a prospectus supplement, the senior debt securities will be senior unsecured obligations, ranking equally
with all of our existing and future senior unsecured debt. The senior debt securities will be senior to all of our subordinated
debt and junior to any secured debt we may incur as to the assets securing such debt.
Subordinated Debt
We may issue subordinated debt securities
under the indenture and any coupons that will constitute part of such subordinated debt. These subordinated debt securities will
be subordinate and junior in right of payment, to the extent and in the manner set forth in the indenture and any applicable indenture
supplement, to all of our senior indebtedness.
If this prospectus is being delivered in
connection with a series of subordinated debt securities, the accompanying prospectus supplement or the information incorporated
by reference will set forth the approximate amount of senior indebtedness outstanding as of the end of the most recent fiscal quarter.
Senior Subordinated
Debt
We may issue senior subordinated debt securities
under the indenture and any coupons that will constitute part of our senior subordinated debt. These senior subordinated debt securities
will be, to the extent and in the manner set forth in the applicable indenture supplement, subordinate and junior in right of payment
to all of our “senior indebtedness” and senior to our other subordinated debt. See the discussions above under “—Senior
Debt” and “—Subordinated Debt” for a more detailed explanation of our senior and subordinated indebtedness.
Interest Rate
Debt securities that bear interest will
do so at a fixed rate or a floating rate. We may sell, at a discount below the stated principal amount, any debt securities which
bear no interest or which bear interest at a rate that at the time of issuance is below the prevailing market rate. The relevant
prospectus supplement will describe the special United States federal income tax considerations applicable to:
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any discounted debt securities; and
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any debt securities issued at par which are treated as having been issued at a discount for United States federal income tax
purposes.
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Registered Global
Securities
We may issue registered debt securities
of a series in the form of one or more fully registered global securities. We will deposit the registered global security with
a depository or with a nominee for a depository identified in the prospectus supplement relating to such series. The global security
or global securities will represent and will be in a denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding registered debt securities of the series to be represented by the registered global security or
securities. Unless it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security
may not be transferred, except as a whole in three cases:
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by the depository for the registered global security to a nominee of the depository;
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by a nominee of the depository to the depository or another nominee of the depository; and
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by the depository or any nominee to a successor of the depository or a nominee of the successor.
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The prospectus supplement relating to a
series of debt securities will describe the specific terms of the depository arrangement concerning any portion of that series
of debt securities to be represented by a registered global security. We anticipate that the following provisions will generally
apply to all depository arrangements.
Upon the issuance of a registered global
security, the depository will credit, on its book-entry registration and transfer system, the principal amounts of the debt securities
represented by the registered global security to the accounts of persons that have accounts with the depository. These persons
are referred to as “participants.” Any underwriters, agents or debtors participating in the distribution of debt securities
represented by the registered global security will designate the accounts to be credited. Only participants or persons that hold
interests through participants will be able to beneficially own interests in a registered global security. The depository for a
global security will maintain records of beneficial ownership interests in a registered global security for participants. Participants
or persons that hold through participants will maintain records of beneficial ownership interests in a global security for persons
other than participants. These records will be the only means to transfer beneficial ownership in a registered global security.
The laws of some states may require that
specified purchasers of securities take physical delivery of the securities in definitive form. These laws may limit the ability
of those persons to own, transfer or pledge beneficial interests in global securities.
So long as the depository, or its nominee,
is the registered owner of a registered global security, the depository or its nominee will be considered the sole owner or holder
of the debt securities represented by the registered global security for all purposes under the indenture. Except as set forth
below, owners of beneficial interests in a registered global security:
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may not have the debt securities represented by a registered global security registered in their names;
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will not receive or be entitled to receive physical delivery of debt securities represented by a registered global security
in definitive form; and
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will not be considered the owners or holders of debt securities represented by a registered global security under the indenture.
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Accordingly, each person owning a beneficial
interest in a registered global security must rely on the procedures of the depository for the registered global security and,
if the person is not a participant, on the procedures of the participant through which the person owns its interests, to exercise
any rights of a holder under the indenture applicable to the registered global security.
We understand that, under existing industry
practices, if we request any action of holders, or if an owner of a beneficial interest in a registered global security desires
to give or take any action which a holder is entitled to give or take under the indenture, the depository for the registered global
security would authorize the participants holding the relevant beneficial interests to give or take the action, and the participants
would authorize beneficial owners owning through the participants to give or take the action or would otherwise act upon the instructions
of beneficial owners holding through them.
Payment of Interest
on and Principal of Registered Global Securities
We will make principal, premium, if any,
and interest payments on debt securities represented by a registered global security registered in the name of a depository or
its nominee to the depository or its nominee as the registered owner of the registered global security. None of EnSync, the trustee,
or any paying agent for debt securities represented by a registered global security will have any responsibility or liability for:
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any aspect of the records relating to, or payments made on account of, beneficial ownership interests in such registered global
security;
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maintaining, supervising, or reviewing any records relating to beneficial ownership interests;
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the payments to beneficial owners of the global security of amounts paid to the depository or its nominee; or
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any other matter relating to the actions and practices of the depository, its nominee or any of its participants.
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We expect that the depository, upon receipt
of any payment of principal, premium or interest in respect of the global security, will immediately credit participants’
accounts with payments in amounts proportionate to their beneficial interests in the principal amount of a registered global security
as shown on the depository’s records. We also expect that payments by participants to owners of beneficial interests in a
registered global security held through participants will be governed by standing instructions and customary practices. This is
currently the case with the securities held for the accounts of customers registered in “street name.” Such payments
will be the responsibility of participants.
Exchange of Registered
Global Securities
We may issue debt securities in definitive
form in exchange for the registered global security if both of the following occur:
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the depository for any debt securities represented by a registered global security is at any time unwilling or unable to continue
as depository or ceases to be a clearing agency registered under the Exchange Act; and
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we do not appoint a successor depository within 90 days.
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In addition, we may, at any time, determine
not to have any of the debt securities of a series represented by one or more registered global securities. In this event, we will
issue debt securities of that series in definitive form in exchange for all of the registered global security or securities representing
those debt securities.
Covenants by EnSync
The indenture includes covenants by us,
including among other things that we will make all payments of principal and interest at the times and places required. The supplemental
indenture establishing each series of debt securities may contain additional covenants, including covenants which could restrict
our right to incur additional indebtedness or liens and to take certain actions with respect to our businesses and assets.
Events of Default
Unless otherwise indicated in the applicable
prospectus supplement, the following will be events of default under the indenture with respect to each series of debt securities
issued under the indenture:
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failure to pay when due any interest on any debt security of that series, continued for 30 days;
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failure to pay when due the principal of, or premium, if any, on, any debt security of that series;
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default in the payment of any sinking fund installment with respect to any debt security of that series when due and payable;
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failure to perform any other covenant or agreement of ours under the indenture or the supplemental indenture with respect to
that series or the debt securities of that series, continued for 90 days after written notice to us by the trustee or holders
of at least 25% in aggregate principal amount of the outstanding debt securities of the series to which the covenant or agreement
relates;
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certain events of bankruptcy, insolvency or similar proceedings affecting us; and
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any other event of default specified in any supplemental indenture under which such series of debt securities is issued.
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Except as to certain events of bankruptcy,
insolvency or similar proceedings affecting us and except as provided in the applicable prospectus supplement, if any event of
default shall occur and be continuing with respect to any series of debt securities under the indenture, either the trustee or
the holders of at least 25% in aggregate principal amount of outstanding debt securities of such series may accelerate the maturity
of all debt securities of such series. Upon certain events of bankruptcy, insolvency or similar proceedings affecting us, the principal,
premium, if any, and interest on all debt securities of each series shall be immediately due and payable.
After any such acceleration, but before
a judgment or decree based on acceleration has been obtained by the trustee, the holders of a majority in aggregate principal amount
of each affected series of debt securities may waive all defaults with respect to such series and rescind and annul such acceleration
if all events of default, other than the non-payment of accelerated principal, have been cured, waived or otherwise remedied.
No holder of any debt securities will have
any right to institute any proceeding with respect to the indenture or for any remedy under the indenture, unless such holder shall
have previously given to the trustee written notice of a continuing event of default and the holders of at least 25% in aggregate
principal amount of the outstanding debt securities of the relevant series shall have made written request and offered indemnity
satisfactory to the trustee to institute such proceeding as trustee, and the trustee shall not have received from the holders of
a majority in aggregate principal amount of the outstanding debt securities of such series a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days. However, such limitations do not apply to a suit
instituted by a holder of a debt security for enforcement of payment of the principal of and premium, if any, or interest on such
debt security on or after the respective due dates expressed in such debt security.
Supplemental Indentures
We and the trustee may, at any time and
from time to time, without prior notice to or consent of any holders of debt securities, enter into one or more indentures supplemental
to the indenture, among other things:
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to add guarantees to or secure any series of debt securities;
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to provide for the succession of another person pursuant to the provisions of the indenture relating to consolidations, mergers
and sales of assets and the assumption by such successor of our covenants, agreements, and obligations, or to otherwise comply
with the provisions of the indenture relating to consolidations, mergers, and sales of assets;
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to surrender any right or power conferred upon us under the indenture or to add to our covenants further covenants, restrictions,
conditions or provisions for the protection of the holders of all or any series of debt securities;
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to cure any ambiguity or to correct or supplement any provision contained in the indenture, in any supplemental indenture or
in any debt securities that may be defective or inconsistent with any other provision contained therein;
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to modify or amend the indenture in such a manner as to permit the qualification of the indenture or any supplemental indenture
under the Trust Indenture Act;
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to add to or change any of the provisions of the indenture to supplement any of the provisions of the indenture in order to
permit the defeasance and discharge of any series of debt securities pursuant to the indenture, so long as any such action does
not adversely affect the interests of the holders of debt securities of any series in any material respect;
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to add to, change, or eliminate any of the provisions of the indenture with respect to one or more series of debt securities,
so long as any such addition, change or elimination shall not apply to any debt securities of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such provision;
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to evidence and provide for the acceptance of appointment by a successor or separate trustee; and
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to establish the form or terms of debt securities of any series and to make any change that does not adversely affect the interests
of the holders of debt securities.
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With the consent of the holders of at least
a majority in principal amount of debt securities of each series affected by such supplemental indenture (each series voting as
one class), we and the trustee may enter into one or more supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the indenture or modifying in any manner the rights of the holders
of debt securities of each such series.
Notwithstanding our rights and the rights
of the trustee to enter into one or more supplemental indentures with the consent of the holders of debt securities of the affected
series as described above, no such supplemental indenture shall, without the consent of the holder of each outstanding debt security
of the affected series, among other things:
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change the final maturity of the principal of, or any installment of interest on, any debt securities;
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reduce the principal amount of any debt securities or the rate of interest on any debt securities;
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change the currency in which any debt securities are payable;
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impair the right of the holders to conduct a proceeding for any remedy available to the trustee;
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reduce the percentage in principal amount of any series of debt securities whose holders must consent to an amendment or supplemental
indenture;
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modify the ranking or priority of the securities;
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reduce any premium payable upon the redemption of any debt securities; or
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make any change that adversely affects the relative rights of holders of subordinated debt securities with respect to senior
debt securities.
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Satisfaction and Discharge
of the Indenture; Defeasance
Except to the extent set forth in a supplemental
indenture with respect to any series of debt securities, we, at our election, may discharge the indenture and the indenture shall
generally cease to be of any further effect with respect to that series of debt securities if (a) we have delivered to the
trustee for cancellation all debt securities of that series (with certain limited exceptions) or (b) all debt securities of
that series not previously delivered to the trustee for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within one year, and we have deposited with the trustee
the entire amount sufficient to pay at maturity or upon redemption all such debt securities.
In addition, we have a “legal defeasance
option” (pursuant to which we may terminate, with respect to the debt securities of a particular series, all of our obligations
under such debt securities and the indenture with respect to such debt securities) and a “covenant defeasance option”
(pursuant to which we may terminate, with respect to the debt securities of a particular series, our obligations with respect to
such debt securities under certain specified covenants contained in the indenture). If we exercise our legal defeasance option
with respect to a series of debt securities, payment of such debt securities may not be accelerated because of an event of default.
If we exercise our covenant defeasance option with respect to a series of debt securities, payment of such debt securities may
not be accelerated because of an event of default related to the specified covenants.
We may exercise our legal defeasance option
or our covenant defeasance option with respect to the debt securities of a series only if we irrevocably deposit in trust with
the trustee cash or U.S. government obligations (as defined in the indenture) for the payment of principal, premium, if any, and
interest with respect to such debt securities to maturity or redemption, as the case may be. In addition, to exercise either of
our defeasance options, we must comply with certain other conditions, including the delivery to the trustee of an opinion of counsel
to the effect that the holders of debt securities of such series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not occurred (and, in the case of legal defeasance only, such
opinion of counsel must be based on a ruling from the Internal Revenue Service or other change in applicable Federal income tax
law).
The trustee will hold in trust the cash
or U.S. government obligations deposited with it as described above and will apply the deposited cash and the proceeds from deposited
U.S. government obligations to the payment of principal, premium, if any, and interest with respect to the debt securities of the
defeased series.
Mergers, Consolidations
and Certain Sales of Assets
We may not
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consolidate with or merge into any other person or entity or permit any other person or entity to consolidate with or merge
into us in a transaction in which we are not the surviving entity, or
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transfer, lease or dispose of all or substantially all of our assets to any other person or entity
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unless:
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the resulting, surviving or transferee entity shall be a corporation organized and existing under the laws of the United States
or any state thereof and such resulting, surviving or transferee entity shall expressly assume, by supplemental indenture, executed
and delivered in form satisfactory to the trustee, all of our obligations under the debt securities and the indenture;
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immediately after giving effect to such transaction (and treating any indebtedness which becomes an obligation of the resulting,
surviving or transferee entity as a result of such transaction as having been incurred by such entity at the time of such transaction),
no default or event of default would occur or be continuing; and
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we shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply with the indenture.
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Governing Law
The indenture and the debt securities will
be governed by the laws of the State of New York.
No Personal Liability
of Directors, Officers, Employees and Stockholders
No director, officer, incorporator or stockholder
of EnSync as such, shall have any liability for any obligations of EnSync under the debt securities or the indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation, solely by reason of his, her, or its status
as director, officer, incorporator or stockholder of EnSync. By accepting a debt security, each holder waives and releases all
such liability, but only such liability. The waiver and release are part of the consideration for issuance of the debt securities.
Nevertheless, such waiver may not be effective to waive liabilities under the federal securities laws and it has been the view
of the SEC that such a waiver is against public policy.
Conversion or Exchange
Rights
Any debt securities offered hereby may be
convertible into or exchangeable for shares of our equity or other securities. The terms and conditions of such conversion or exchange
will be set forth in the applicable prospectus supplement. Such terms may include, among others, the following:
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the conversion or exchange price;
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the conversion or exchange period;
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provisions regarding our ability or that of the holder to convert or exchange the debt securities;
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events requiring adjustment to the conversion or exchange price; and
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provisions affecting conversion or exchange in the event of our redemption of such debt securities.
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Concerning the Trustee
The indenture provides that there may be
more than one trustee with respect to one or more series of debt securities. If there are different trustees for different series
of debt securities, each trustee will be a trustee of a trust under a supplemental indenture separate and apart from the trust
administered by any other trustee under such indenture. Except as otherwise indicated in this prospectus or any prospectus supplement,
any action permitted to be taken by a trustee may be taken by the trustee only with respect to the one or more series of debt securities
for which it is the trustee under an indenture. Any trustee under the indenture or a supplemental indenture may resign or be removed
with respect to one or more series of debt securities. All payments of principal of, premium, if any, and interest on, and all
registration, transfer, exchange authentication and delivery (including authentication and delivery on original issuance of the
debt securities) of, the debt securities of a series will be effected by the trustee with respect to such series at an office designated
by the trustee.
The indenture contains limitations on the
right of the trustee, should it become a creditor of EnSync to obtain payment of claims in certain cases or to realize on certain
property received in respect of any such claim as security or otherwise. If the trustee acquires an interest that conflicts with
any duties with respect to the debt securities, the trustee is required to either resign or eliminate such conflicting interest
to the extent and in the manner provided by the indenture.
Limitations on Issuance
of Bearer Debt Securities
Debt securities in bearer form are subject
to special U.S. tax requirements and may not be offered, sold, or delivered within the United States or its possessions or to a
U.S. person, except in certain transactions permitted by U.S. tax regulations. Investors should consult the relevant prospectus
supplement, in the event that bearer debt securities are issued for special procedures and restrictions that will apply to such
an offering.
DESCRIPTION
OF PREFERRED STOCK WE MAY OFFER
Our articles of incorporation
authorize us to issue 10,000,000 shares of undesignated preferred stock, par value $0.01 per share. We may issue preferred
stock from time to time in one or more series, without shareholder approval, when authorized by our board of directors. As of
March 31, 2017, our board of directors had authorized and we had outstanding 3,000 shares of Series B Convertible Preferred
Stock (of which 2,300 are issued and outstanding), 7,012 shares of Series C-1 Convertible Preferred Stock, 7,012 shares of Series C-2
Convertible Preferred Stock, 7,012 shares of Series C-3 Convertible Preferred Stock, 7,012 shares of Series C-4 Convertible
Preferred Stock (Series C-1 through C-4, collectively the “Series C Convertible Stock”) and no other shares of
preferred stock were issued or outstanding.
This section describes the general terms
and provisions of the preferred stock we may offer as well as the terms of our Series B and Series C Convertible Preferred Stock
which may affect other securities that we may offer by this prospectus. This information may not be complete in all respects and
is qualified entirely by reference to our articles of incorporation, with respect to each series of preferred stock, including
the Series B and Series C Convertible Preferred Stock.
The specific terms of any series of preferred
stock will be described in a prospectus supplement. Those terms may differ from the terms discussed below. Any series of preferred
stock we issue will be governed by our articles of incorporation and by the certificate of designations relating to that series.
We will file the certificate of designations with the SEC and incorporate it by reference as an exhibit to our registration statement
at or before the time we issue any preferred stock of that series.
Series B Convertible
Preferred Stock
On September 26, 2013, we entered into a
Securities Purchase Agreement with certain investors providing for the sale of a total of 3,000 shares of series B Convertible
Preferred Stock.
Shares of the Series B Convertible Preferred
Stock were sold for $1000 per share (the “Stated Value”) and accrue dividends on the Stated Value at an annual rate
of 10.0%. As of March 31, 2017, the series B convertible preferred stock was convertible into a total of 3,420,885 shares of our
common stock at a conversion price equal to $0
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95 (the “Conversion Price”). Upon any liquidation, dissolution
or winding-up of the Company, holders of Series B Convertible Preferred Stock will be entitled to receive out of the assets of
the Company an amount equal to two times the Stated Value, plus any accrued and unpaid dividends thereon. Shares of the Series
B Preferred Stock vote on an as-converted basis the same as our common stock. There is no restriction on the repurchase or redemption
of shares by the Company while there is any arrearage in the payment of dividends or sinking fund installments.
In connection with the sale of the Series
B Convertible Preferred Stock, each investor received a warrant to purchase a number of shares of common stock equal to 100% times
such investor’s investment in the Series B Convertible Preferred Stock divided by the Conversion Price, at an exercise price
equal to the Conversion Price. The warrants expired on September 27, 2016.
Series C Convertible
Preferred Stock
On July 13, 2015, we entered into a Securities
Purchase Agreement (the “Purchase Agreement”) with SPI Energy Co., Ltd. ("SPI"), (formerly known as Solar
Power, Inc.), providing for the sale of, among other securities, a total of 28,048 shares of Series C Convertible Preferred Stock.
The Company also entered into a supply agreement with SPI pursuant to which we agreed to sell and SPI agreed to purchase certain
products and services offered by us from time to time, including certain energy management system solutions for solar projects
(the "Supply Agreement").
Shares of the Series C Convertible Preferred
Stock were sold for $1000 per share (the “Stated Value”) and are convertible at a conversion price of $0.6678 per share
provided that (A) the first one fourth (the "Series C-1 Preferred Stock") of the Purchased Preferred Shares only become
convertible upon the completion of five megawatts worth of solar projects in accordance with the Supply Agreement (the "Projects"),
(B) the second one-fourth (the "Series C-2 Preferred Stock") only become convertible upon the completion of 15 megawatts
worth of Projects, (C) the third one-fourth (the "Series C-3 Preferred Stock") only become convertible upon the completion
of 25 megawatts worth of Projects, and (D) the last one-fourth (the "Series C-4 Preferred Stock") only become convertible
upon the completion of 40 megawatts worth of Projects. As described below, because EnSync terminated the Supply Agreement, it is
no longer possible for SPI to satisfy the conditions that would have enabled it to convert any shares of the Series C Convertible
Preferred Stock into shares of EnSync common stock.
Upon any liquidation, dissolution or winding-up
of the Company, holders of Series C Convertible Preferred Stock will be entitled to receive out of the assets of the Company an
amount equal to the higher of (a) the Stated Value and (b) the amount payable to the holder of the Series C Convertible Preferred
Stock if such holder had converted the Series C Convertible Preferred Stock into the Company’s Common Stock immediately prior
to such liquidation, dissolution or winding-up of the Company for each share of Series C Convertible Preferred Stock after any
distribution or payment to the holders of the Series B Convertible Preferred Stock and before any distribution or payment shall
be made to the holders of any of the Company’s “Junior Securities” (as defined the certificate of designation
of preferences, rights and limitations of the Series C Convertible Preferred Stock). There is no restriction on the repurchase
or redemption of shares by the Company while there is any arrearage in the payment of dividends or sinking fund installments.
Except as otherwise provided in the certificate
of designation of preferences, rights and limitations of the Series C Convertible Preferred Stock or as otherwise required by law,
the Series C Convertible Preferred Stock has no voting rights. However, the certificate of designations, preferences, rights and
limitations of the Series C Convertible Preferred Stock allows its holders to vote on an as-converted basis on amendments to the
Company's Articles of Incorporation and Bylaws.
Pursuant to the Purchase Agreement, SPI
was also issued a warrant to purchase 50,000,000 shares of Common Stock for an aggregate purchase price of $36,729,000 (the "Warrant").
The Warrant represents the right to acquire 50,000,000 shares of Common Stock at an exercise price equal to $0.7346. The Warrant
only becomes exercisable upon the completion of 40 megawatts worth of Projects. The Warrant would have become exercisable only
once SPI purchased and paid for 40 megawatts of Projects. As described below, because EnSync terminated the Supply Agreement, it
is no longer possible for SPI to satisfy the conditions that would have enabled the Warrant to become exercisable.
SPI never made any purchases under the Supply
Agreement. Due to SPI’s failure to meet its purchase obligations, on May 4, 2017, the Company terminated the Supply Agreement.
As a result of the termination of the Supply Agreement, it is no longer possible for SPI to satisfy the conditions that would have
enabled it to convert the Series C Convertible Preferred Stock or exercise the Warrant.
Future Classes of
Series of Preferred Stock
Upon issuance of a
new series of preferred stock, our board of directors is authorized, to specify:
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the number of shares to be included in the series;
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the annual dividend rate for the series, if any, and any restrictions or conditions on the payment
of dividends;
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the redemption price, if any, and the terms and conditions of redemption;
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any sinking fund provisions for the purchase or redemption of the series;
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if the series is convertible, the terms and conditions of conversion;
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the amounts payable to holders upon our liquidation, dissolution or winding up; and
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any other rights, preferences and limitations relating to the series, including voting rights.
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Our board of director’s ability to
authorize, without shareholder approval, the issuance of preferred stock with conversion and other rights, may adversely affect
the rights of holders of our common stock or other series of preferred stock that may be outstanding.
Specific Terms
of a Series of Preferred Stock
The new preferred stock we may offer will
be issued in one or more series. The preferred stock will have the dividend, liquidation, redemption and voting rights discussed
below, unless otherwise described in a prospectus supplement relating to a particular series. A prospectus supplement will discuss
the following features of the series of preferred stock to which it relates:
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the designations and stated value per share;
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the number of shares offered;
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the amount of liquidation preference per share;
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the public offering price at which the preferred stock will be issued;
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the dividend rate, the method of its calculation, the dates on which dividends would be paid and
the dates, if any, from which dividends would cumulate;
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any redemption or sinking fund provisions;
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any conversion or exchange rights; and
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any additional voting, dividend, liquidation, redemption, sinking fund and other rights, preferences,
privileges, limitations and restrictions.
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Rank
Unless otherwise stated in the prospectus
supplement, the new preferred stock will have priority over our common stock with respect to dividends and distribution of assets,
but will rank junior to all our outstanding indebtedness for borrowed money. Any series of preferred stock could rank senior, equal
or junior to our other capital stock, as may be specified in a prospectus supplement, as long as our articles of incorporation
so permit.
Dividends
Holders of each series of newly issued preferred
stock shall be entitled to receive cash dividends to the extent specified in the prospectus supplement when, as and if declared
by our board of directors, from funds legally available for the payment of dividends. The rates and dates of payment of dividends
of each series of preferred stock will be stated in the prospectus supplement. Dividends will be payable to the holders of record
of preferred stock as they appear on our books on the record dates fixed by our board of directors. Dividends on any series of
preferred stock may be cumulative or non-cumulative, as discussed in the applicable prospectus supplement.
Convertibility
Shares of a new series of preferred stock
may be exchangeable or convertible into shares of our common stock, another series of preferred stock or other securities or property.
The conversion or exchange may be mandatory or optional. The prospectus supplement will specify whether the preferred stock being
offered has any conversion or exchange features, and will describe all the related terms and conditions.
Redemption
The terms, if any, on which shares of preferred
stock of a new series may be redeemed will be discussed in the applicable prospectus supplement.
Liquidation
Upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of EnSync, holders of each series of newly issued preferred stock will be entitled to
receive distributions upon liquidation in the amount described in the related prospectus supplement. These distributions will be
made before any distribution is made on any securities ranking junior to the preferred stock with respect to liquidation, including
our common stock. If the liquidation amounts payable relating to the preferred stock of any series and any other securities ranking
on a parity regarding liquidation rights are not paid in full, the holders of the preferred stock of that series will share ratably
in proportion to the full liquidation preferences of each security. Holders of our preferred stock will not be entitled to any
other amounts from us after they have received their full liquidation preference.
Voting
The holders of preferred stock of each new
series will have no voting rights, except as required by law and as described below or in a prospectus supplement. Our board of
directors may, upon issuance of a series of preferred stock, grant voting rights to the holders of that series to elect additional
board members if we fail to pay dividends in a timely fashion.
Without the affirmative vote of a majority
of the shares of preferred stock of any series then outstanding, we may not:
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increase or decrease the aggregate number of authorized shares of that series;
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increase or decrease the par value of the shares of that series; or
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alter or change the powers, preferences or special rights of the shares of that series so as to
affect them adversely.
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No Other Rights
The shares of a new series of preferred
stock will not have any preferences, voting powers or relative, participating, optional or other special rights except:
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as discussed above or in the prospectus supplement;
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as provided in our articles of incorporation and in the certificate of designations; and
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as otherwise required by law.
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DESCRIPTION
OF COMMON STOCK WE MAY OFFER
The following summary description of our
common stock is based on the provisions of our articles of incorporation or bylaws and the applicable provisions of the Business
Corporation Law of the State of Wisconsin. This information may not be complete in all respects and is qualified entirely by reference
to the provisions of our articles of incorporation, bylaws and the Business Corporation Law of the State of Wisconsin. For information
on how to obtain copies of our articles of incorporation and bylaws, see the discussion above under the heading “Where You
Can Find More Information.”
We may offer our common stock issuable upon
the conversion of debt securities or preferred stock and the exercise of warrants.
Authorized Capital
We currently have authority to issue 300,000,000
shares of our common stock, par value $0.01 per share.
Voting Rights
Each outstanding share of our common stock
is entitled to one vote on all matters submitted to a vote of shareholders. There is no cumulative voting.
Dividend and Liquidation
Rights
The holders of outstanding shares of our
common stock are entitled to receive dividends out of assets legally available for the payment of dividends at the times and in
the amounts as our board of directors may from time to time determine. The shares of our common stock are neither redeemable nor
convertible. Holders of our common stock have no preemptive or subscription rights to purchase any securities of EnSync. Upon the
liquidation, dissolution or winding up of EnSync, the holders of our common stock are entitled to receive pro rata the assets of
EnSync which are legally available for distribution, after payment of all debts and other liabilities and subject to the prior
rights of any holders of preferred stock then outstanding.
We have never paid any cash dividends on
our common stock.
DESCRIPTION
OF WARRANTS WE MAY OFFER
We may issue warrants for the purchase of
debt securities, preferred stock or common stock. Warrants may be issued independently or together with debt securities, preferred
stock or common stock and may be attached to or separate from any offered securities. Any issue of warrants will be governed by
the terms of the applicable form of warrant and any related warrant agreement which we will file as an exhibit to our registration
statement at or before the time we issue any warrants.
The particular terms of any issue of warrants
will be described in the prospectus supplement relating to the issue. Those terms may include:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies (including composite currencies) in which the price of such warrants
may be payable;
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the terms of the securities purchasable upon exercise of such warrants and the procedures and conditions
relating to the exercise of such warrants;
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the price at which the securities purchasable upon exercise of such warrants may be purchased;
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the date on which the right to exercise such warrants will commence and the date on which such
right shall expire;
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any provisions for adjustment of the number or amount of securities receivable upon exercise of
the warrants or the exercise price of the warrants;
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if applicable, the minimum or maximum amount of such warrants that may be exercised at any one
time;
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if applicable, the designation and terms of the securities with which such warrants are issued
and the number of such warrants issued with each such security;
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if applicable, the date on and after which such warrants and the related securities will be separately
transferable;
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information with respect to book-entry procedures, if any; and
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange
or exercise of such warrants.
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The prospectus supplement relating to any
warrants to purchase equity securities may also include, if applicable, a discussion of certain U.S. federal income tax and ERISA
considerations.
Warrants for the purchase of preferred stock
and common stock will be offered and exercisable for U.S. dollars only.
Each warrant will entitle its holder to
purchase the principal amount of debt securities or the number of shares of preferred stock or common stock at the exercise price
set forth in, or calculable as set forth in, the applicable prospectus supplement.
After the close of business on the expiration
date, unexercised warrants will become void. We will specify the place or places where, and the manner in which, warrants may be
exercised in the applicable prospectus supplement.
Prior to the exercise of any warrants to
purchase debt securities, preferred stock or common stock, holders of the warrants will not have any of the rights of holders of
the debt securities, preferred stock or common stock purchasable upon exercise.
PLAN
OF DISTRIBUTION
We may sell the securities offered by this
prospectus to one or more underwriters or dealers for public offering, through agents, directly to purchasers or through a combination
of any such methods of sale. The name of any such underwriters, dealers or agents involved in the offer and sale of the securities,
the amounts underwritten and the nature of its obligation to take the securities will be specified in the applicable prospectus
supplement. We have reserved the right to sell the securities directly to investors on our own behalf in those jurisdictions
where we are authorized to do so. The sale of the securities may be effected in transactions (a) on any national or international
securities exchange or quotation service on which the securities may be listed or quoted at the time of sale, (b) in the over-the-counter
market, (c) in transactions otherwise than on such exchanges or in the over-the-counter market or (d) through the writing of options.
We, and our agents and underwriters, may
offer and sell the securities at a fixed price or prices that may be changed, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices. The securities may be offered on an exchange,
which will be disclosed in the applicable prospectus supplement. We may, from time to time, authorize dealers, acting as
our agents, to offer and sell the securities upon such terms and conditions as set forth in the applicable prospectus supplement.
If we use underwriters to sell securities,
we will enter into an underwriting agreement with them at the time of the sale to them. In connection with the sale of the
securities, underwriters may receive compensation from us in the form of underwriting discounts or commissions and may also receive
commissions from purchasers of the securities for whom they may act as agent. Any underwriting compensation paid by us to
underwriters or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed
by underwriters to participating dealers, will be set forth in the applicable prospectus supplement to the extent required by applicable
law. Underwriters may sell the securities to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters or commissions (which may be changed from time to time) from the purchasers
for whom they may act as agents.
Dealers and agents participating in the
distribution of the securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act.
Unless otherwise indicated in the applicable prospectus supplement, an agent will be acting on a best efforts basis and a
dealer will purchase debt securities as a principal, and may then resell the debt securities at varying prices to be determined
by the dealer.
If so indicated in the prospectus supplement,
we will authorize underwriters, dealers or agents to solicit offers by certain specified institutions to purchase offered securities
from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be subject to any conditions set forth in the
applicable prospectus supplement and the prospectus supplement will set forth the commission payable for solicitation of such contracts.
The underwriters and other persons soliciting such contracts will have no responsibility for the validity or performance of any
such contracts.
Underwriters, dealers and agents may be
entitled, under agreements entered into with us, to indemnification against and contribution towards certain civil liabilities,
including any liabilities under the Securities Act.
To facilitate the offering of securities,
certain persons participating in the offering may engage in transactions that stabilize, maintain, or otherwise affect the price
of the securities. These may include over-allotment, stabilization, syndicate short covering transactions and penalty bids.
Over-allotment involves sales in excess of the offering size, which creates a short position. Stabilizing transactions
involve bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate
short covering transactions involve purchases of securities in the open market after the distribution has been completed in order
to cover syndicate short positions. Penalty bids permit the underwriters to reclaim selling concessions from dealers when
the securities originally sold by the dealers are purchased in covering transactions to cover syndicate short positions. These
transactions may cause the price of the securities sold in an offering to be higher than it would otherwise be. These transactions,
if commenced, may be discontinued by the underwriters at any time.
Any securities other than our common stock
issued hereunder may be new issues of securities with no established trading market. Any underwriters or agents to or through
whom such securities are sold for public offering and sale may make a market in such securities, but such underwriters or agents
will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given
as to the liquidity of the trading market for any such securities. The amount of expenses expected to be incurred by us in
connection with any issuance of securities will be set forth in the applicable prospectus supplement. Certain of the underwriters,
dealers or agents and their associates may engage in transactions with, and perform services for, us and certain of our affiliates
in the ordinary course of business.
During such time as we may be engaged in
a distribution of the securities covered by this prospectus we are required to comply with Regulation M promulgated under the Exchange
Act. With certain exceptions, Regulation M precludes us, any affiliated purchasers, and any broker-dealer or other person
who participates in such distribution from bidding for or purchasing, or attempting to induce any person to bid for or purchase,
any security which is the subject of the distribution until the entire distribution is complete. Regulation M also restricts
bids or purchases made in order to stabilize the price of a security in connection with the distribution of that security. All
of the foregoing may affect the marketability of our shares of common stock.
To the extent required, this prospectus
may be amended or supplemented from time to time to describe a specific plan of distribution.
LIABILITY
OF DIRECTORS AND EXECUTIVE OFFICERS
Sections 180.0850 to 180.0859 of the Wisconsin
Business Corporation Law (“WBCL”) require a corporation to indemnify any director or officer who is a party to any
threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding,
whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the
corporation or by any other person. A corporation’s obligation to indemnify any such person includes the obligation to pay
any judgment, settlement, penalty, assessment, forfeiture or fine, including any excise tax assessed with respect to an employee
benefit plan, and all reasonable expenses including fees, costs, charges, disbursements, attorney’s and other expenses except
in those cases in which liability was incurred as a result of the breach or failure to perform a duty which the director or officer
owes to the corporation and the breach or failure to perform constitutes: (i) a willful failure to deal fairly with the corporation
or its shareholders in connection with a matter in which the director or officer has a material conflict of interest; (ii) a violation
of criminal law, unless the person has reasonable cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful; (iii) a transaction from which the person derived an improper personal profit; or (iv) willful misconduct.
Unless otherwise provided in a corporation’s
articles of incorporation or by-laws or by written agreement, an officer or director seeking indemnification is entitled to indemnification
if approved in any of the following manners: (i) by majority vote of a disinterested quorum of the board of directors, or if such
quorum of disinterested directors cannot be obtained, by a majority vote of a committee of two or more disinterested directors;
(ii) by independent legal counsel; (iii) by a panel of three arbitrators; (iv) by affirmative vote of shareholders; (v) by a court;
or (vi) with respect to any additional right to indemnification granted, by any other method permitted in Section 180.0858 of the
WBCL.
Reasonable expenses incurred by a director
or officer who is a party to a proceeding may be reimbursed by a corporation at such time as the director or officer furnishes
to the corporation written affirmation of his good faith belief that he has not breached or failed to perform his duties and a
written undertaking to repay any amounts advanced if it is determined that indemnification by the corporation is not required.
The indemnification provisions of Sections
180.0850 to 180.0859 of the WBCL are not exclusive. A corporation may expand an officer’s or director’s right to indemnification
(i) in its articles of incorporation or by-laws; (ii) by written agreement between the director or officer and the corporation;
(iii) by resolution of its board of directors; or (iv) by resolution of a majority of all of the corporation’s voting shares
then issued and outstanding.
As permitted by Section 180.0858 of the
WBCL, EnSync has adopted indemnification provisions in its By-Laws which closely track the statutory indemnification provisions
with certain exceptions. In particular, Article V of EnSync’s By-Laws provides (i) that an individual shall be indemnified
unless it is proven by a final judicial adjudication that indemnification is prohibited, and (ii) payment or reimbursement of expenses,
subject to certain limitations, will be mandatory rather than permissive.
EnSync has also entered into indemnification
agreements with certain of its directors pursuant to which the Company has agreed to indemnify and hold harmless such directors
to the fullest extent permitted under the WBCL and EnSync’s By-laws as in effect as of the date of the indemnification agreements
and as either may be amended to provide more advantageous rights to the director.
EnSync’s officers and directors are
also covered by officers’ and directors’ liability insurance.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants, pursuant to
the forgoing provisions or otherwise, the registrant has been informed that in the opinion of the Securities and Exchange Commission
such indemnification by it is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
LEGAL
MATTERS
The validity and legality of the securities
offered hereby and certain other legal matters will be passed upon for us by Godfrey & Kahn, S.C., Milwaukee, Wisconsin.
EXPERTS
The consolidated financial statements of
EnSync, included in the Company’s Annual Report on Form 10-K for the year ended June 30, 2016, incorporated by reference
in this prospectus supplement and the registration statement of which this prospectus supplement is a part, have been audited by
Baker Tilly Virchow Krause, LLP, an independent registered public accounting firm, as stated in their report appearing therein. Such consolidated
financial statements are included in reliance upon the report of such firm given upon their authority as experts in accounting
and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses
of Issuance and Distribution.
The following is an itemized statement of
expenses of the Company in connection with the issuance and delivery of the securities being registered hereby, other than underwriting
discounts and commissions.
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SEC Registration Fee
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$
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2,053
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Printing Expenses
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*
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Listing Fees
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*
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Trustee Fees and Expenses
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*
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Accounting fees and expenses
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*
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Legal fees and expenses
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*
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Miscellaneous
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*
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Total
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$
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2,053
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*
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These fees will be dependent on the types of securities offered and number of offerings and, therefore, cannot be estimated
at this time.
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Item 15. Indemnification
of Directors and Officers.
Sections 180.0850 to 180.0859 of the Wisconsin
Business Corporation Law (“WBCL”) require a corporation to indemnify any director or officer who is a party to any
threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding,
whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the
corporation or by any other person. A corporation’s obligation to indemnify any such person includes the obligation to pay
any judgment, settlement, penalty, assessment, forfeiture or fine, including any excise tax assessed with respect to an employee
benefit plan, and all reasonable expenses including fees, costs, charges, disbursements, attorney’s and other expenses except
in those cases in which liability was incurred as a result of the breach or failure to perform a duty which the director or officer
owes to the corporation and the breach or failure to perform constitutes: (i) a willful failure to deal fairly with the corporation
or its shareholders in connection with a matter in which the director or officer has a material conflict of interest; (ii) a violation
of criminal law, unless the person has reasonable cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful; (iii) a transaction from which the person derived an improper personal profit; or (iv) willful misconduct.
Unless otherwise provided in a corporation’s
articles of incorporation or by-laws or by written agreement, an officer or director seeking indemnification is entitled to indemnification
if approved in any of the following manners: (i) by majority vote of a disinterested quorum of the board of directors, or if such
quorum of disinterested directors cannot be obtained, by a majority vote of a committee of two or more disinterested directors;
(ii) by independent legal counsel; (iii) by a panel of three arbitrators; (iv) by affirmative vote of shareholders; (v) by a court;
or (vi) with respect to any additional right to indemnification granted, by any other method permitted in Section 180.0858 of the
WBCL.
Reasonable expenses incurred by a director
or officer who is a party to a proceeding may be reimbursed by a corporation at such time as the director or officer furnishes
to the corporation written affirmation of his good faith belief that he has not breached or failed to perform his duties and a
written undertaking to repay any amounts advanced if it is determined that indemnification by the corporation is not required.
The indemnification provisions of Sections
180.0850 to 180.0859 of the WBCL are not exclusive. A corporation may expand an officer’s or director’s right to indemnification
(i) in its articles of incorporation or by-laws; (ii) by written agreement between the director or officer and the corporation;
(iii) by resolution of its board of directors; or (iv) by resolution of a majority of all of the corporation’s voting shares
then issued and outstanding.
As permitted by Section 180.0858 of the
WBCL, EnSync has adopted indemnification provisions in its By-Laws which closely track the statutory indemnification provisions
with certain exceptions. In particular, Article V of EnSync ’s By-Laws provides (i) that an individual shall be indemnified
unless it is proven by a final judicial adjudication that indemnification is prohibited, and (ii) payment or reimbursement of expenses,
subject to certain limitations, will be mandatory rather than permissive.
EnSync’s officers and directors are
also covered by officers’ and directors’ liability insurance.
Item 16. Exhibits.
The exhibits required to be filed as a part
of this Registration Statement are listed in the Exhibit Index attached hereto and incorporated herein by reference.
Item 17. Undertakings.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants, pursuant to
the provisions described under Item 15 or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification by it is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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to reflect in the prospectus any acts or events arising after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in 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 a prospectus filed with the SEC pursuant to Rule 424(b)
under the Securities Act 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);
and
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(iii)
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to include any material information with respect to the plan of distribution not previously disclosed in this registration
statement or any material change to such information in this registration statement;
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provided
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however
, that subparagraphs (i), (ii) and
(iii) do not apply if the information required to be included in a post-effective amendment by those subparagraphs is contained
in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, that are incorporated by reference in this registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration, by
means of a post-effective amendment, any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(i) if the registrant is relying
on Rule 430B: (A) 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 (B) 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; or
(ii) if the registrant is subject
to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other
than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to
be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use.
(5) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: the undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the portion of any other
free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering made
by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(7) That for purposes of determining
any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time
it was declared effective.
(8) That, for the purpose of determining
any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(9) To file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized.
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EnSync, Inc.
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By:
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/s/ Bradley L. Hansen
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Bradley L. Hansen
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President and Chief Executive Officer
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Dated: June 23,
2017
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below
constitutes and appoints Bradley Hansen and Fred Vaske his or her true and lawful attorneys-in-fact and agents, each acting alone,
with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all parties,
to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
and Exchange Act of 1934, as amended, this registration statement has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
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Position
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Date
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/s/ Bradley L. Hansen
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President and Chief Executive Officer
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June 23, 2017
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Bradley L. Hansen
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(Principal executive officer) and Director
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/s/ Frederick P. Vaske
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Chief Administrative Officer and Secretary
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June 23, 2017
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Frederick P. Vaske
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(Principal financial officer)
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/s/ Dilek Wagner
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Vice President of Finance
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June 23, 2017
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Dilek Wagner
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(Principal accounting officer)
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/s/ Paul F. Koeppe
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Chairman and Director
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June 23, 2017
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Paul F. Koeppe
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/s/ Eric C. Apfelbach
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Vice Chairman and Director
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June 23, 2017
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Eric C. Apfelbach
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/s/ Richard A. Abdoo
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Director
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June 23, 2017
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Richard A. Abdoo
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/s/ Manfred Birnbaum
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Director
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|
June 23, 2017
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Manfred Birnbaum
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/s/ Hoong Khoeng Chong
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Director
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June 23, 2017
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Hoong Khoeng Chong
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/s/ James H. Ozanne
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Director
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June 23, 2017
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James H. Ozanne
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/s/ Theodore Stern
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Director
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June 23, 2017
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Theodore Stern
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EXHIBIT INDEX
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Exhibit
|
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Description
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1
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Form of Underwriting Agreement*
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4.1
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Specimen stock certificate for common stock (incorporated by reference to the Company’s Amendment No. 3 to Registration Statement on Form SB-2 filed on April 13, 2007)
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4.2
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Form of certificate representing EnSync’s preferred stock*
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|
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4.3
|
|
Form of certificate of designations for preferred stock*
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|
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4.4
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|
Form of Indenture relating to the issuance from time to time in one or more series of debentures, notes, bonds or other evidences of indebtedness
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|
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4.5
|
|
Form of Senior Debt Security*
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|
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4.6
|
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Form of Subordinated Debt Security*
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|
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|
4.7
|
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Form of Warrant*
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|
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5.1
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Opinion of Godfrey & Kahn, S.C. as to legality of securities being registered
|
|
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23.1
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Consent of Godfrey & Kahn, S.C. (contained in Exhibit 5.1)
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|
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23.2
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Consent of Independent Registered Public Accounting Firm
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|
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24
|
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Power of Attorney (included on signature page)
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|
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25
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Form T-1 Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, as amended**
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* To be filed, if necessary, with a Current
Report on Form 8-K or a Post-Effective Amendment to the registration statement.
** To be filed pursuant to
Section 305(b)(2) of the Trust Indenture Act of 1939.
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