NeoVolta Inc S-1/A, filed Jun 23, 2022
NeoVolta Inc. (NEOV)
As filed with the Securities and Exchange Commission on June 23, 2022.
Registration No. 333-264275
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
(Amendment No. 5)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NEOVOLTA, INC.
(Exact name of registrant as specified in its charter)
Nevada |
| 3690 |
| 82-5299263 |
(State or other jurisdiction of |
| (Primary Standard Industrial |
| (I.R.S. Employer |
incorporation or organization) |
| Classification Code Number) |
| Identification Number) |
13651 Danielson Street, Suite A
Poway, CA 92064
(800) 364-5464
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Brent Willson
Chief Executive Officer
NeoVolta, Inc.
13651 Danielson Street, Suite A
Poway, CA 92064
(800) 364-5464
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
Cavas Pavri, Esq. ArentFox Schiff LLP 1717 K Street, NW Washington, DC 20006 Telephone: (202) 724-6847 Fax: (202) 778-6460 | Barry Grossman, Esq. Sarah Williams, Esq. Matthew Bernstein, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, New York 10105 Telephone: (212) 370-1300 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement is declared effective.
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, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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 post-effective amendment filed pursuant to Rule 462(d) 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. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ | Accelerated filer ☐ |
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Non-accelerated filer ☒ | Smaller reporting company ☒ |
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| Emerging growth company ☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. ☐
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, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to Section 8(a), may determine.
EXPLANATORY NOTE
NeoVolta, Inc. is filing this Amendment No. 5 (this “Amendment”) to its Registration Statement on Form S-1 (File No. 333-264275) (the “Registration Statement”) as an exhibits-only filing. Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 16(a) of Part II of the Registration Statement, the signature page to the Registration Statement and the filed exhibit. The remainder of the Registration Statement is unchanged and has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
Exhibit No. |
| Exhibit Description |
1.1** |
| Form of Underwriting Agreement. |
| Amended and Restated Articles of Incorporation of NeoVolta, Inc. (incorporated by reference to exhibit 2.1 of the Company’s Form 1-A (file no. 024-10942)). | |
| Amended and Restated Bylaws of NeoVolta, Inc. (incorporated by reference to exhibit 2.2 of the Company’s Form 1-A (file no. 024-10942)). | |
| Second Amended and Restated Bylaws of NeoVolta, Inc. | |
| Form of 2018 convertible promissory note issued to debt holders (incorporated by reference to exhibit 3.1 of the Company’s Form 1-A (file no. 024-10942)) | |
| Form of amendment to 2018 convertible promissory notes issued to debt holders (incorporated by reference to exhibit 3.2 of the Company’s Form 1-K for the year ended June 30, 2019 filed October 15, 2019) | |
4.3** |
| Form of Common Stock Purchase Warrant. |
4.4** |
| Form of Warrant Agent Agreement. |
4.5** |
| Form of Underwriter’s Warrant. |
4.6** |
| Form of October 2021 convertible promissory note |
5.1* |
| Opinion of ArentFox Schiff LLP |
| NeoVolta, Inc. 2019 Stock Plan (incorporated by reference to exhibit 6.4 of the Company’s Form 1-A (file no. 024-10942)) | |
| Amended and Restated Independent Contractor Agreement between NeoVolta, Inc. and Canmore International Inc. dated January 1, 2020 (incorporated by reference to exhibit 6.1 of the Company’s Form 1-K for the year ended June 30, 2020 filed October 2, 2020) | |
| Amended and Restated Independent Contractor Agreement between NeoVolta, Inc. and Steve Bond dated October 4, 2021 (incorporated by reference to exhibit 6.2 of the Company’s Form 1-K for the year ended June 30, 2020 filed October 2, 2020) | |
| Employment Agreement between NeoVolta, Inc. and Brent Willson dated January 1, 2019 (incorporated by reference to exhibit 6.3 of the Company’s Form 1-A (file no. 024-10942)) | |
10.5+ |
| Employment Agreement between NeoVolta, Inc. and Brent Willson dated February 23, 2022 (incorporated by reference to exhibit 6.5 of the Company’s Form 1-SA for the fiscal semi-annual period ended December 31, 2021, filed on March 28, 2022) |
10.6+ |
| Employment Agreement between NeoVolta, Inc. and Steve Bond dated February 23, 2022 (incorporated by reference to exhibit 6.6 of the Company’s Form 1-SA for the fiscal semi-annual period ended December 31, 2021, filed on March 28, 2022) |
10.7**++ |
| Distribution Agreement, dated as of October 7, 2019, between NeoVolta, Inc. and PMP Energy, LLC |
10.8**++ |
| Exclusive Supply Agreement, effective as of August 30, 2021, by and between NeoVolta, Inc. and NingBo Deye Inverter Technology Co, Ltd. |
10.9** |
| Consent to Sublease dated August 16, 2021 between NeoVolta, Inc. and ConnectPV, Inc. |
| Independent Director Agreement, dated April 11, 2022, by and between NeoVolta, Inc. and Susan Snow. | |
| Independent Director Agreement, dated April 7, 2022, by and between NeoVolta, Inc. and John Hass. | |
14.1** |
| Code of Ethics |
23.1** |
| Consent of MaloneBailey, LLP. |
23.2** |
| Consent of ArentFox Schiff (included in Exhibit 5.1). |
24.1 |
| Power of Attorney (previously included on the signature page) |
99.1** |
| Consent of Susan Snow |
99.2** |
| Consent of John Hass |
107** |
| Filing fee table |
+ Management contract or compensatory plan or arrangement.
* Filed herewith.
** Previously filed.
++Pursuant to Item 601(b)(10)(iv) of Regulation S-K promulgated by the SEC, certain portions of this exhibit have been redacted. The Company hereby agrees to furnish supplementally to the SEC, upon its request, an unredacted copy of this exhibit.
II-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Poway, State of California, on June 23, 2022.
| NEOVOLTA, INC. | |
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| By: | /s/ Brent Willson |
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| Brent Willson |
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| Chief Executive Officer and President |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
/s/ Brent Willson |
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Brent Willson |
| Chief Executive Officer, President, and Director |
| June 23, 2022 |
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| (Principal Executive Officer) |
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/s/ Steve Bond |
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Steve Bond |
| Chief Financial Officer and Director |
| June 23, 2022 |
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| (Principal Financial and Accounting Officer) |
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* |
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James F. Amos |
| Director |
| June 23, 2022 |
* Pursuant to power of attorney
By: /s/ Steve Bond
Steve Bond, Attorney-in-fact
II-2
| ArentFox Schiff LLP 1717 K Street NW Washington, DC 20006 ____________________________ 202.857.6000 MAIN 202.857.6395 FAX ____________________________ afslaw.com |
June 23, 2022
NeoVolta, Inc.
13651 Danielson Street, Suite A
Poway, CA 92064
Re: Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as counsel to NeoVolta, Inc., a Nevada corporation (the “Company”), in connection with the Registration Statement on Form S-1 (as amended, the “Registration Statement”), filed by the Company on April 13, 2022 with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for the proposed offering (the “Offering”) of (A) 1,500,000 units (the “Units”) of securities of the Company, with each Unit consisting of (a) one share of common stock, par value $0.001 per share, of the Company (“Common Stock”), and (b) two warrants each to purchase one share of Common Stock (and the shares of Common Stock issuable from time to time upon exercise of the Warrants) (the “Warrants”); and (B) underwriters’ warrants to purchase up to 90,000 shares of Common Stock (and the shares of Common Stock issuable from time to time upon exercise of the Underwriters’ Warrants) (the “Underwriters’ Warrants”). The Common Stock, Warrants (and the shares of Common Stock issuable from time to time upon exercise of the Warrants), and Underwriters’ Warrants (and the shares of Common Stock issuable from time to time upon exercise of the Underwriters’ Warrants) are referred to herein collectively as the “Securities.” The Securities are being sold to the several underwriters named in, and pursuant to, an underwriting agreement among the Company and such underwriters (“Underwriting Agreement”).
In connection with our opinion, we have examined the Registration Statement, including the exhibits thereto, the form of Underwriters’ Warrant, and such other documents, corporate records and instruments, and have examined such laws and regulations, as we have deemed necessary for the purposes of this opinion. In making our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity with the originals of all documents submitted to us as copies and the legal capacity of all natural persons. As to matters of fact material to our opinions in this letter, we have relied on certificates and statements from officers and other employees of the Company, public officials and other appropriate persons.
Based on the foregoing and subject to the qualifications set forth below, we are of the opinion that:
1. The Securities have been duly authorized for issuance by all necessary corporate action by the Company.
2. The shares of Common Stock, when issued and sold as described in the Registration Statement, will be validly issued, fully paid and non-assessable.
3. Provided that the Units, the Warrants and Underwriters’ Warrants have been duly executed and delivered by the Company and duly delivered to the purchasers or underwriters, such Units, Warrants and Underwriters’ Warrants, when issued as contemplated in the Registration Statement, will be valid and binding obligations of the Company.
4. The shares of Common Stock issuable pursuant to each of the Warrants and Underwriter’s Warrants, upon payment to the Company of the required consideration, and when issued and sold by the Company and paid for in accordance with the terms of the Warrants or Underwriters’ Warrants, as applicable, and as described in the Registration Statement, will be validly issued, fully paid and non-assessable.
| June 23, 2022 Page 2 |
The opinions set forth above are subject to the following qualifications:
A. The opinion expressed herein with respect to the legality, validity, binding nature and enforceability of the Units, Warrants and Underwriters’ Warrant is subject to (i) applicable laws relating to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting creditors’ rights generally, whether now or hereafter in effect and (ii) general principles of equity, including, without limitation, concepts of materiality, laches, reasonableness, good faith and fair dealing and the principles regarding when injunctive or other equitable remedies will be available (regardless of whether considered in a proceeding at law or in equity).
B. The foregoing opinions are limited to the laws of the State of New York and Chapter 78 of the Nevada Revised Statutes, and we express no opinion as to the laws of any other jurisdiction.
The opinions expressed in this opinion letter are as of the date of this opinion letter only and as to laws covered hereby only as they are in effect on that date, and we assume no obligation to update or supplement such opinion to reflect any facts or circumstances that may come to our attention after that date or any changes in law that may occur or become effective after that date. The opinions herein are limited to the matters expressly set forth in this opinion letter, and no opinion or representation is given or may be inferred beyond the opinions expressly set forth in this opinion letter.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the use of this firm’s name under the caption “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Sincerely,
/s/ ArentFox Schiff, LLP