As Filed With the Securities and Exchange Commission on December 28, 2017

Registration No. 333-____

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

ENSYNC, INC.

(Exact name of registrant as specified in its charter)

 

Wisconsin 39-1987014
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)

 

  N93 W14475 Whittaker Way  
  Menomonee Falls, Wisconsin 53051
  (Address of principal executive offices) (Zip Code)

 

ENSYNC, INC. 2010 OMNIBUS LONG-TERM INCENTIVE PLAN

NON-PLAN INDUCEMENT NONSTATUTORY STOCK OPTION AWARDS

 

(Full title of plan)

 

Frederick P. Vaske

Chief Administrative Officer

EnSync, Inc.

N93 W14475 Whittaker Way

Menomonee Falls, Wisconsin 53051

(Name and address of agent for service)

(262) 253-9800

(Telephone number, including area code,

of agent for service)

 

 

 

With a copy to:

 

Mark R. Busch

K&L Gates LLP

214 North Tryon Street, Suite 4700

Charlotte, NC 28202

(704) 331-7440

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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   ¨
Non-accelerated  filer    ¨ Smaller reporting company   þ
(Do not check if a smaller reporting company)  
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 pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

 

 

 

CALCULATION OF REGISTRATION FEE

 

          Proposed     Proposed        
          Maximum     Maximum        
    Amount to be     Aggregate Offering     Aggregate Offering     Amount of  
Title of Securities to be Registered   Registered (1)     Price Per Share (3)     Price     Registration Fee  
2010 Omnibus Long-Term Incentive Plan     2,000,000     $ 0.44     $ 880,000     $ 109.56  
Common Stock, par value $0.01 per share                                
Non-Plan Inducement Nonstatutory Stock Option Awards     180,000 (2)   $ 0.44     $ 79,200     $ 9.86  
Common Stock, par value $0.01 per share                                
Total Registration Fee     2,180,000             $ 959,200     $ 119.42  

 

 

 

(1) In addition, pursuant to Rule 416(a), this Registration Statement also covers such indeterminate number of additional shares of Common Stock as is necessary to eliminate any dilutive effect of any future stock split, stock dividend or similar transaction.

 

(2) Represents shares of the Registrant’s Common Stock issuable upon settlement of Non-Plan Inducement Nonstatutory Stock Options.

 

(3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and 457(h) of the Securities Act of 1933, as amended, and based on the average of the high and low prices for the Common Stock on December 27, 2017 as reported on the NYSE American.

 

 

 

 

EXPLANATORY NOTE

 

Pursuant to General Instruction E to Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement is filed by EnSync, Inc., a Wisconsin corporation (the “Company” or “Registrant”), in part, for the purpose of registering 2,000,000 additional shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), for offer and sale under the EnSync, Inc. 2010 Omnibus Long-Term Incentive Plan, as amended (the “2010 Omnibus Plan”), pursuant to an amendment to the 2010 Omnibus Plan approved by the Company’s stockholders on December 19, 2017 (the “Omnibus Plan Amendment”).

 

After taking into account the shares added by the Omnibus Plan Amendment, the aggregate number of shares of Common Stock that may be issued under the 2010 Omnibus Plan is 13,950,000, which includes (i) 4,000,000 shares of Common Stock previously registered under the Registration Statement on Form S-8, File No. 333-214645, filed with the Securities and Exchange Commission (the “Commission”) on November 16, 2016 (the “November 2016 Omnibus Plan Registration Statement”); (ii) 5,000,000 shares of Common Stock previously registered under the Registration Statement on Form S-8, File No. 333-208310, filed with the Commission on December 2, 2015 (the “December 2015 Omnibus Plan Registration Statement”); (iii) 1,250,000 shares of Common Stock previously registered under the Registration Statement on Form S-8, File No. 333-200798, filed with the Commission on December 8, 2014 (the “December 2014 Omnibus Plan Registration Statement”); (iv) 900,000 shares of Common Stock previously registered under the Registration Statement on Form S-8, File No. 333-185063 filed with the Commission on November 20, 2012 (the “November 2012 Omnibus Plan Registration Statement” ) and (v) 800,000 shares of Common Stock previously registered under the Registration Statement on Form S-8, File No. 333-171954, filed with the Commission on January 28, 2011 (the “January 2011 Omnibus Plan Registration Statement” and, together with the November 2016 Omnibus Plan Registration Statement, the December 2015 Omnibus Plan Registration Statement, the December 2014 Omnibus Plan Registration Statement and the November 2012 Omnibus Plan Registration Statement, the “Prior Omnibus Plan Registration Statements”). Pursuant to Instruction E to Form S-8, the Company hereby incorporates the Prior Omnibus Plan Registration Statements by reference.

 

This Registration Statement is also filed by the Company, in part, for the purpose of registering shares of Common Stock in connection with the issuance of up to 180,000 shares of Common Stock pursuant to Nonstatutory Stock Option Agreements issued on February 28, 2017.  

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1. Plan Information.

 

The information required by this Item 1 is omitted from this registration statement in accordance with Rule 428(b)(1) of the Securities Act, and the Note to Part I of Form S-8.

 

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Item 2. Registrant Information and Employee Plan Annual Information.

 

The information required by this Item 2 is omitted from this registration statement in accordance with Rule 428(b)(1) of the Securities Act and the Note to Part I of Form S-8.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

 

Item 3. Incorporation of Documents by Reference.

 

The following documents have been filed by the Company with the Commission and are incorporated herein by reference:

 

· Annual Report on Form 10-K for the fiscal year ended June 30, 2017 filed on September 27, 2017;

 

· Quarterly Report on Form 10-Q for the quarter ended September 30, 2017 filed on November 9, 2017;

 

· Current Reports on Form 8-K filed on July 7, 2017, November 15, 2017 and December 19, 2017 (other than the portions of those documents furnished but deemed not to have been filed); and

 

· The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A, filed with the Commission pursuant to Section 12(g) of the Exchange Act on June 13, 2007, including any further amendment or report filed hereafter for the purpose of updating such description.

 

All reports and other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date hereof, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such reports and documents. The Company is not incorporating by reference any documents or portions thereof that are not considered to be “filed” with the Commission.

 

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

 

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Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. 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 that is adopted, after notice, of a majority of all of the corporation’s voting shares then issued and outstanding.

 

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As permitted by Section 180.0858 of the WBCL, the Company has adopted indemnification provisions in its By-Laws which closely track the statutory indemnification provisions with certain exceptions. In particular, Article V of the Company’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.

 

As permitted by Section 180.0857 of the WBCL, the Company has also purchased director’s and officer’s liability insurance that insures the Company’s directors and officers against certain liabilities.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Reference is made to the attached Exhibit Index, which is incorporated herein by reference.

 

Item 9. Undertakings.

 

(a) The undersigned registrant hereby undertakes:

 

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

 

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

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

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(iii) 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;

 

provided , however , that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in 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.

 

(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the 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.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Menomonee Falls, State of Wisconsin, on December 28, 2017.

 

  ENSYNC, INC.
     
  By /s/ Bradley L. Hansen
    Bradley L. Hansen
    President and Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Bradley L. Hansen and Frederick P. 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 Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the date indicated.

 

    Position   Date
         
/s/ Bradley L. Hansen   President and Chief Executive Officer   December 28, 2017
Bradley L. Hansen   (Principal Executive Officer) and Director    
         
/s/ Frederick P. Vaske   Chief Administrative Officer   December 28, 2017
Frederick P. Vaske   (Principal Financial Officer)    
         
/s/ William J. Dallapiazza   Interim Vice President of Finance   December 28, 2017
William J. Dallapiazza   (Principal Accounting Officer)    
         
/s/ Paul F. Koeppe   Chairman and Director   December 28, 2017
Paul F. Koeppe        
         
/s/ Richard A. Abdoo   Director   December 28, 2017
Richard A. Abdoo        
         
/s/ Manfred E. Birnbaum   Director   December 28, 2017
Manfred E. Birnbaum        
         
/s/ James H. Ozanne   Director   December 28, 2017
James H. Ozanne        
         
/s/ Theodore Stern   Director   December 28, 2017
Theodore Stern        

 

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EXHIBIT INDEX

 

Exhibit
Number
  Description
     
4.1   Articles of Incorporation of EnSync, Inc., as amended (previously filed as Exhibit 3.1 to the Company’s Annual Report on Form 10-K field on September 28, 2015, which is incorporated herein by reference)
     
4.2   Articles of Amendment to Articles of Incorporation of EnSync, Inc. (previously filed as Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q filed on February 16, 2016, which is incorporated herein by reference)
     
4.3   Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Stock (previously filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on September 27, 2013, which is incorporated herein by reference)
     
4.4   Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred Stock (previously filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on July 14, 2015, which is incorporated herein by reference)
     
4.5   Amended and Restated By-laws of EnSync, Inc. (as of November 4, 2009) (previously filed as Exhibit 3.4 to the Company’s Annual Report on Form 10-K filed on September 28, 2015, which is incorporated herein by reference)
     
4.6   EnSync, Inc. 2010 Omnibus Long-Term Incentive Plan (previously filed as Appendix A to the Proxy Statement for the Company’s 2010 Annual Meeting of Shareholders filed on September 24, 2010, which is incorporated herein by reference)
     
4.7   Amendment No. 1 to EnSync, Inc. 2010 Omnibus Long-Term Incentive Plan (previously filed as Appendix A to the Proxy Statement for the Company’s 2012 Annual Meeting of Shareholders filed on September 25, 2012, which is incorporated herein by reference)
     
4.8   Amendment No. 2 to EnSync, Inc. 2010 Omnibus Long-Term Incentive Plan (previously filed as Appendix A to the Proxy Statement for the Company’s 2014 Annual Meeting of Shareholders filed on October 9, 2014, which is incorporated herein by reference)
     
4.9   Amendment No. 3 to EnSync, Inc. 2010 Omnibus Long-Term Incentive Plan (previously filed as Appendix B to the Proxy Statement for the Company’s 2015 Annual Meeting of Shareholders filed on October 7, 2015, which is incorporated herein by reference)

 

 

 

 

4.10   Amendment No. 4 to EnSync, Inc. 2010 Omnibus Long-Term Incentive Plan (previously filed as Appendix A to the Proxy Statement for the Company’s 2016 Annual Meeting of Shareholders filed on October 11, 2016, which is incorporated herein by reference)
     
4.11   Amendment No. 5 to EnSync, Inc. 2010 Omnibus Long-Term Incentive Plan (previously filed as Appendix A to the Proxy Statement for the Company’s 2017 Annual Meeting of Shareholders filed on October 5, 2017, which is incorporated herein by reference)
     
4.12   2010 Omnibus Long-Term Incentive Plan Form Stock Option Award Agreement (previously filed as Exhibit 4.2 to the Registration Statement on Form S-8 filed on January 31, 2011, which is incorporated herein by reference)
     
4.13   2010 Omnibus Long-Term Incentive Plan Form Restricted Stock Unit Award Agreement (previously filed as Exhibit 4.3 to the Registration Statement on Form S-8 filed on January 31, 2011, which is incorporated herein by reference)
     
4.14   Form of Nonstatutory Stock Option Agreement, filed herewith
     
5   Opinion of Godfrey & Kahn, S.C., filed herewith
     
23.1   Consent of Godfrey & Kahn, S.C. (contained in Exhibit 5), filed herewith  
     
23.2   Consent of Baker Tilly Virchow Krause, LLP, filed herewith
     
24   Power of Attorney (see page 6)

 

 

 

Exhibit 4.14

ENSYNC, INC.

 

NONSTATUTORY STOCK OPTION AGREEMENT

 

This Nonstatutory Stock Option Agreement (this “Agreement”) is executed as of [●], by and between ENSYNC, INC., a Wisconsin corporation (the “Company”), and [●] (“Employee”).

 

W I T N E S S E T H:

 

WHEREAS, the Company wishes to grant Employee a Nonstatutory Stock Option in conjunction with Employee’s appointment as [●], subject to the terms provided in this Agreement; and

 

WHEREAS, the Company anticipates that this Agreement will promote the best interests of the Company and its shareholders by providing Employee a proprietary interest in the Company with a stronger incentive to put forth maximum effort for the continued success and growth of the Company and its subsidiaries;

 

NOW, THEREFORE, in consideration of the benefits that the Company will derive in connection with the services to be rendered by Employee, the Company and Employee hereby agree as follows:

 

1. Determinations by Administrator; Certain Definitions The Administrator (as defined below) shall make all interpretations, rules and regulations necessary to administer this Agreement, and such determinations of the Administrator shall be binding upon Employee. For purposes of this Agreement, the term “Administrator” shall mean the Compensation Committee of the Board of Directors.

 

2. Option; Number of Shares; Option Price . The Option (as defined below) granted hereunder is intended to be a nonstatutory stock option and therefore shall not qualify as an incentive stock option pursuant to Section 422 of the Internal Revenue Code of 1986, as amended. Employee shall have the right and option to purchase all or any part of an aggregate of [●] shares of $0.01 par value common stock of the Company (“Share(s)”) at the purchase price of $[●] per Share (the “Option”).

 

3. Vesting and Expiration .

 

(a)        Vesting . The Option shall vest (become exercisable) and remain exercisable only in accordance with Annex 1 attached hereto.

 

(b)        Expiration . To the extent not previously exercised according to the terms hereof, the Option shall expire on the eighth anniversary of the date hereof.

 

 

 

  

4. Exercise Period .

 

(a)        Disability . Upon Employee’s termination of employment due to a Disability, Employee shall have one (1) year from the date of such termination to exercise the Option granted hereunder as to all or part of the Shares subject to this Option provided Employee has a present right to exercise such Option as of the date of such termination; provided , however , that this Option shall not be exercisable subsequent to the expiration date specified in Section 3(b), above.

 

(b)        Death . Upon Employee’s termination of employment due to death, the Option, as to all or any part of the Shares subject to this Option, shall be exercisable provided Employee has a present right to exercise such Option as of the date of such termination:

 

(1)       for one (1) year after Employee’s death, but in no event subsequent to the expiration date specified in Section 3(b), above; and

 

(2)       only (i) by the designated beneficiary of Employee (such designation to be made in writing at such time and in such manner as the Administrator shall approve or prescribe), or (ii) if Employee dies without a surviving designated beneficiary, by the personal representative, administrator, or other representative of the estate of Employee, or by the person or persons to whom the deceased rights of Employee under the Option shall pass by will or the laws of descent and distribution. Employee may change the beneficiary designation at any time, by giving written notice to the Administrator, subject to such conditions and requirements as the Administrator may prescribe in accordance with applicable law.

 

(c)        Other Terminations of Employment . Upon Employee’s termination of employment for any reason other than those specified above in this Section 4, Employee shall have ninety (90) days from the date of such termination to exercise the Option as to all or part of the Shares, provided Employee has a present right to exercise such Option as of the date of such termination; provided , however , that the Option shall not be exercisable subsequent to the expiration date specified in Section 3(b), above. Notwithstanding the foregoing, if Employee’s employment is terminated for Cause, to the extent the Option held by Employee is not effectively exercised prior to such termination, it shall lapse immediately upon such termination.

 

(d)        Extension of Exercise Period . The Administrator may in its sole discretion extend the period permitted for exercise of the Option upon Employee’s termination of employment as otherwise provided in this Section 4 if allowable under applicable law.

 

5. Method of Exercising Option . Except as otherwise permitted by the Administrator, the Option shall be exercisable by delivery to the Company (to the attention of its Secretary), at its offices in Menomonee Falls, Wisconsin, of (i) written notice identifying the Option and stating the number of Shares with respect to which it is being exercised, (ii) payment in full of the exercise price of the Shares then being acquired as provided in Section 6, below, and (iii) execution of such other documentation as is determined to be necessary or appropriate by the Administrator from time to time the form of which shall be provided to Employee at the time of execution and delivery of this Agreement. The Company shall have the right to delay the issue or delivery of any Shares to be delivered hereunder until (i) the completion of such registration or qualification of such Shares under federal, state, or foreign law, ruling, or regulation as the Company shall deem to be necessary or advisable, and (ii) receipt from Employee of such documents and information as the Administrator may deem necessary or appropriate in connection with such registration or qualification or the issuance of Shares hereunder.

 

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6. Payment of Exercise Price . The exercise price shall be payable in whole or in part in cash, Shares held by Employee, other property, or such other consideration consistent with the Agreement’s purpose and applicable law as may be determined by the Administrator from time to time. Except as otherwise determined by the Administrator at the time of grant, such price shall be paid in cash in full at the time that the Option is exercised. If Employee is permitted by the Administrator to pay all or a part of the exercise price in Shares and elects to do so, Employee may make such payment by delivering to the Company a number of Shares, either directly or by attestation, which are equal in value to the purchase or exercise price hereunder. For this purpose, all Shares so delivered shall be valued per share at the Fair Market Value (as defined above; provided , however , if a Share is not susceptible to valuation by the above method, the term “Fair Market Value” of a Share shall mean the fair market value of a Share as the Administrator may determine in conformity with pertinent law) of a Share on the business day immediately preceding the day on which such Shares are delivered.

 

7. Prohibition Against Transfer . Unless otherwise provided by the Administrator and except as provided below, the Option, and the rights and privileges conferred hereby, may not be transferred by Employee, and shall be exercisable during the lifetime of Employee only by Employee. The Option shall not be subjected to execution, attachment or similar process. Employee shall have the right to transfer the Option upon Employee’s death, either to Employee’s designated beneficiary (such designation to be made in writing at such time and in such manner as the Administrator shall approve or prescribe), or, if Employee dies without a surviving designated beneficiary, by the terms of Employee’s will or under the laws of descent and distribution, subject to any limitations set forth in this Agreement and all such distributees shall be subject to all terms and conditions of this Agreement to the same extent as Employee would be if still living.

 

8. Nature of Option . Employee shall not have any interest in any fund or in any specific asset or assets of the Company by reason of the Option granted hereunder, or any right to exercise any of the rights or privileges of a stockholder with respect to the Option until Shares are issued in connection with any exercise.

 

9. Adjustment provisions .

 

(a)        Share Adjustments . In the event of any stock dividend, stock split, recapitalization, merger, consolidation, combination or exchange of shares of Company stock, or the like, as a result of which shares of any class shall be issued in respect of the outstanding Shares, or the Shares shall be changed into the same or a different number of the same or another class of stock, or into securities of another person, cash or other property (not including a regular cash dividend), the number of Shares subject to the Option and the exercise price applicable to the Option shall be appropriately adjusted in such equitable and proportionate amount as determined by the Administrator. No fractional Share shall be issued under the Agreement resulting from any such adjustment but the Administrator in its sole discretion may make a cash payment in lieu of a fractional Share.

 

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(b)        Acquisitions . In the event of a merger or consolidation of the Company with another corporation or entity, or a sale or disposition by the Company of all or substantially all of its assets, the Administrator shall, in its sole discretion, have authority to provide for (i) waiver in whole or in part of any remaining restrictions or vesting requirements in connection with the Option granted hereunder, (ii) the conversion of the outstanding Option into cash, (iii) the conversion of the Option into the right to receive securities, including options, of another person or entity upon such terms and conditions as are determined by the Administrator in its sole discretion and/or (iv) the lapse of the Option after notice in writing has been given that the Option may be exercised within a set period from the date of such notice and that any Option not exercised within such period shall lapse.

 

(c)        Binding Effect . Without limiting the generality of what is provided in Section 1 hereof and for avoidance of doubt, any adjustment, waiver, conversion or other action taken by the Administrator under this Section 9 shall be conclusive and binding on Employee and the Company and any respective successors and assigns.

 

10. Notices . Any notice to be given to the Company under the terms of this Agreement shall be given in writing to the Company at its offices in Menomonee Falls, Wisconsin. Any notice to be given to Employee may be addressed to Employee’s address as it appears on the payroll records of the Company or any subsidiary thereof. Any such notice shall be deemed to have been duly given if and when actually received by the party to whom it is addressed, as evidenced by a written receipt to that effect.

 

11. Taxes . The Company may require payment or reimbursement of or may withhold any minimum tax that it believes is required as a result of the grant or exercise of the Option, and the Company may defer making delivery with respect to Shares or cash payable hereunder or otherwise until arrangements satisfactory to the Company have been made with respect to such withholding obligations.

 

12. Rights of Employee . The Option, and any payments or other benefits received by Employee under the Option, is discretionary and shall not be deemed a part of Employee’s regular, recurring compensation for any purpose, including without limitation for purposes of termination, indemnity, or severance pay law of any country and shall not be included in, nor have any effect on, the determination of benefits under any other employee benefit plan, contract or similar arrangement provided to Employee unless expressly so provided by such other plan, contract or arrangement, or unless the Administrator expressly determines otherwise.

 

13. Amendment . The Administrator may amend the Agreement; provided , however , that Employee’s consent to such action shall be required unless the Administrator determines that the action, taking into account any related action, would not materially and adversely affect Employee. However, notwithstanding any other provision of the Agreement, the Administrator may not adjust or amend the exercise price of the Option, whether through amendment, cancellation and replacement grants, or any other means, except in accordance with Section 9 hereof.

 

    4  

 

  

14. No Right To Employment . The Agreement shall not confer upon Employee any right to continue employment with the Company or a subsidiary, nor shall it interfere in any way with the right of the Company or such subsidiary to terminate Employee’s employment any time.

 

15. Entire Agreement . This Agreement constitutes the final understanding between Employee and the Company regarding the Option.

 

16. Severability . In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and this Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.

 

17. Governing Law . This Agreement and all actions taken hereunder shall be governed by, and construed in accordance with, the laws of the State of Wisconsin, applied without regard to the laws of any other jurisdiction that otherwise would govern under conflict of law principles.

 

 

[ Signature Page Follows ]

 

 

    5  

 

 

IN WITNESS WHEREOF, the Company has caused these presents to be executed as of the date and year first above written, which is the date of the granting of the Option evidenced hereby.

 

  ENSYNC, INC.  
         
         
  By:    
    Name: Daniel Nordloh  
    Title: Authorized Signatory  

 

The undersigned Employee hereby accepts the foregoing Option and agrees to the several terms and conditions hereof.

 

 

     
  Employee  

 

 

 

 

Annex 1

 

[●]

 

 

 

 

 

Exhibit 5

 

   

 

December 28, 2017

 

EnSync, Inc.

N93 W14475 Whittaker Way

Menomonee Falls, Wisconsin 53051

 

RE: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as special counsel to EnSync, Inc. (the “Company”) in connection with the Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission on or about December 28, 2017 relating to the issuance by the Company of up to 2,180,000 shares of common stock, $0.01 par value (the “Shares”), consisting of (A) up to 2,000,000 Shares (the “Plan Shares”) issuable pursuant to the EnSync, Inc. 2010 Omnibus Long-Term Incentive Plan (the “2010 Plan”), as amended by the Company’s shareholders on December 19, 2017 (the “2010 Plan Amendment”); and (B) up to 180,000 Shares (the “Inducement Shares”), including up to (i) 90,000 Shares issuable pursuant to the Nonstatutory Stock Option Agreement dated February 28, 2017 between the Company and David Geary, and (ii) 90,000 Shares issuable pursuant to the Nonstatutory Stock Option Agreement dated February 28, 2017 between the Company and Timothy Martinson (together the “Inducement Award Agreements”).

 

We have examined: (1) the Registration Statement, (2) the Company’s Restated Articles of Incorporation and By-Laws, each as amended to date, (3) certain resolutions of the Company’s Board of Directors, (4) the 2010 Plan and the 2010 Plan Amendment, (5) the Inducement Award Agreements, and (6) such other proceedings, documents and records as we have deemed necessary to enable us to render this opinion.

 

In examining the foregoing documents, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies, and the authenticity of the originals of any such documents.

 

Based on and subject to the foregoing, we are of the opinion that:

 

1. The Plan Shares, when issued as contemplated in the Registration Statement and in accordance with the 2010 Plan as amended by the 2010 Plan Amendment and any related award agreement thereunder, will be duly authorized, validly issued, fully paid and nonassessable.

 

2. The Inducement Shares, when issued in accordance with the terms of the Inducement Award Agreements, will be duly authorized, validly issued, fully paid and nonassessable.

 

The foregoing opinions are limited to the laws of the State of Wisconsin as currently in effect, and no opinion is expressed with respect to such laws as subsequently amended, or any other laws, or any effect that such amended or other laws may have on the opinions expressed herein. The foregoing opinions are limited to matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein. The foregoing opinions are given as of the date hereof and based solely on our understanding of facts in existence as of such date after the aforementioned examination, and we undertake no obligation to advise you of any changes in applicable laws after the date hereof or of any facts that might change the opinions expressed herein of which we may become aware after the date hereof.

 

We consent to the use of this opinion as an exhibit to the Registration Statement.

 

Very truly yours,

 

/s/ GODREY & KAHN, S.C.

 

GODFREY & KAHN, S.C.

 

 

 

Exhibit 23.2

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated September 27, 2017, relating to the consolidated financial statements of EnSync, Inc., which appears in EnSync Inc.’s Annual Report on Form 10-K for the year ended June 30, 2017.

 

 

/s/ BAKER TILLY VIRCHOW KRAUSE, LLP

 

December 28, 2017