Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-252475
PROSPECTUS
SUPPLEMENT
(To
Prospectus dated February 3, 2021)
$17,600,000
Common
Stock
We
have entered into an At Market Issuance Sales Agreement the (the “Sales Agreement”) with B. Riley Securities, Inc. (“B.
Riley”) and Northland Securities, Inc. (“Northland”, and together with B. Riley, the “Sales Agents”) relating
to the issuance and sale of our common stock offered by this prospectus supplement. In accordance with the terms of the Sales Agreement,
we may offer and sell shares of our common stock under this prospectus having an aggregate offering price of up to $17,600,000 from time
to time through or to either Sales Agent, as sales agent or principal.
Our
common stock is traded on the Nasdaq Capital Market, or Nasdaq, under the symbol “SUNW.” On August 24, 2023, the closing
sale price of our common stock on Nasdaq was $0.89 per share.
Sales
of shares of our common stock under this prospectus supplement, if any, may be made by any method deemed to be an “at the market
offering” as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities Act.
The
Sales Agents are not required to sell any specific number of shares of our common stock. The Sales Agents have agreed to use their commercially
reasonable efforts consistent with their normal trading and sales practices, on mutually agreed terms between the Sales Agents and us.
There is no arrangement for funds to be received in any escrow, trust or similar arrangement. The Sales Agents will be entitled to compensation
under the terms of the Sales Agreement at a commission rate equal to up to 3.0% of the gross proceeds of the sales price of common stock
that they sell as sales agents and up to 6.0% of the gross proceeds of the sales price of common stock sold to the Sales Agents as
principals. The net proceeds from any sales under this prospectus supplement will be used as described under “Use of Proceeds.”
The proceeds we receive from sales of our common stock, if any, will depend on the number of shares actually sold and the offering price
of such shares.
In
connection with the sale of common stock on our behalf, each Sales Agent will be deemed to be an underwriter within the meaning of the
Securities Act, and its compensation as the Sales Agent will be deemed to be underwriting commissions or discounts. We have agreed to
provide indemnification and contribution to each Sales Agent with respect to certain liabilities, including liabilities under the Securities
Act.
On
June 8, 2022, the Company established an “at the market offering” program relating to the issuance and sale of common stock
having an aggregate gross sales price of up to $26,800,000 (the “Prior Program”). As of the date of this prospectus supplement,
the Prior Program has been terminated.
Investing
in our securities involves a high degree of risk. You should read carefully and consider the information contained in and incorporated
by reference under “Risk Factors” beginning on page S-4 of this prospectus, and the risk factors contained in other documents
incorporated by reference.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
| B.
Riley Securities |
Northland
Capital Markets
|
The
date of this prospectus supplement is August 28, 2023
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS SUPPLEMENT
This
document is part of a registration statement that was filed with the Securities and Exchange Commission, or the SEC, using a “shelf”
registration process and consists of two parts. The first part is the prospectus supplement, including the documents incorporated by
reference herein, which describes the specific terms of this offering. The second part, the accompanying prospectus, including the documents
incorporated by reference therein, provides more general information. In general, when we refer only to the prospectus, we are referring
to both parts of this document combined. Before you invest, you should carefully read this prospectus supplement, the accompanying prospectus,
all information incorporated by reference herein and therein, as well as the additional information described under the heading “Where
You Can Find More Information.” These documents contain information you should carefully consider when deciding whether to invest
in our common stock.
This
prospectus supplement may add, update or change information contained in the accompanying prospectus. To the extent there is a conflict
between the information contained in this prospectus supplement and the accompanying prospectus, you should rely on information contained
in this prospectus supplement, provided that if any statement in, or incorporated by reference into, one of these documents is inconsistent
with a statement in another document having a later date, the statement in the document having the later date modifies or supersedes
the earlier statement. Any statement so modified will be deemed to constitute a part of this prospectus only as so modified, and any
statement so superseded will be deemed not to constitute a part of this prospectus.
You
should rely only on the information contained in this prospectus supplement, the accompanying prospectus, any document incorporated by
reference herein or therein, or any free writing prospectuses we may provide to you in connection with this offering. Neither we nor
any Sales Agent has authorized anyone to provide you with any different information. We take no responsibility for and can provide no
assurance as to the reliability of, any other information that others may provide to you. The information contained in this prospectus
supplement, the accompanying prospectus, and in the documents incorporated by reference herein or therein is accurate only as of the
date such information is presented. Our business, financial condition, results of operations and prospects may have changed since that
date.
This
prospectus supplement and the accompanying prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities
other than the shares of common stock to which it relates, nor do this prospectus supplement and the accompanying prospectus constitute
an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction.
Unless
otherwise indicated, information contained in or incorporated by reference into this prospectus concerning our industry and the markets
in which we operate, including market opportunity, market position and competitive landscape, is based on information from our management’s
estimates, as well as from industry publications, surveys and studies conducted by third parties. Management estimates are derived from
publicly available information, our knowledge of our industry, and assumptions based on such information and knowledge, which we believe
to be reasonable. In addition, while we believe that information contained in industry publications, surveys and studies has been obtained
from reliable sources, the accuracy and completeness of such information is not guaranteed, and we have not independently verified any
of the data contained in these third-party sources.
This
prospectus supplement and the accompanying prospectus, and any documents incorporated by reference herein or therein, include statements
that are based on various assumptions and estimates that are subject to numerous known and unknown risks and uncertainties. Some of these
risks and uncertainties are described under the heading “Risk Factors” beginning on page S-4 of this prospectus supplement
and in the section titled “Risk Factors” in our most recent Annual Report on Form 10-K and our Quarterly Reports on Form
10-Q, which are incorporated by reference into the prospectus. These and other important factors could cause our future results to be
materially different from the results expected as a result of, or implied by, these assumptions and estimates. You should read the information
contained in this prospectus supplement and the accompanying prospectus, and the documents incorporated by reference herein and therein,
completely and with the understanding that future results may be materially different and worse from what we expect. See the information
included under the heading “Note Regarding Forward-Looking Statements.”
Securities
offered pursuant to the registration statement to which this prospectus supplement relates may only be offered and sold if not more than
three years have elapsed since February 3, 2021, the initial effective date of the registration statement, subject to the extension of
this period in compliance with applicable SEC rules.
We
note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that
is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in some cases, for
the purpose of allocating risk among the parties to such agreement, and should not be deemed to be a representation, warranty or covenant
to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations,
warranties and covenants should not be relied on as accurately representing the current state of our affairs.
Unless
otherwise indicated or the context otherwise requires, the terms “Company,” “Sunworks,” “we,” “us”
and “our” refer to Sunworks, Inc., a Delaware corporation, and its predecessors and consolidated subsidiaries.
PROSPECTUS
SUPPLEMENT SUMMARY
The
following is a summary of selected information contained elsewhere or incorporated by reference. It does not contain all of the information
that you should consider before buying our securities. You should read this prospectus in its entirety, including the information incorporated
by reference herein and therein.
Overview
We
provide photovoltaic (“PV”) and battery-based power and storage systems for the residential and commercial markets. Commercial
projects include commercial, agricultural, industrial and public works projects. We operate in several residential and commercial markets
including California, Utah, Nevada, Arizona, New Mexico, Texas, Colorado, Minnesota, Wisconsin, Massachusetts, Rhode Island, New York,
Pennsylvania, New Jersey and South Carolina. Through our operating subsidiaries, we design, arrange financing, integrate, install, and
manage systems ranging in size from 2kW (kilowatt) for residential projects to multi-MW (megawatt) systems for larger commercial and
public works projects. Commercial installations have included installations at office buildings, manufacturing plants, warehouses, service
stations, churches, and agricultural facilities such as farms, wineries, and dairies. Public works installations have included school
districts, local municipalities, federal facilities and higher education institutions.
Residential
Solar
Through
our Solcius LLC subsidiary, we design, arrange financing, integrate, install, and manage systems, primarily for residential homeowners.
We sell residential solar systems through multiple channels, through our network of sales channel partners, as well as, a growing direct
sales channel strategy. We operate in several residential markets including California, Utah, Nevada, Arizona, New Mexico, Texas, Colorado,
Minnesota, Wisconsin, and South Carolina. We have direct sales and/or operations personnel in California, Nevada, Utah, Arizona, New
Mexico, Texas, Colorado, South Carolina, Wisconsin and Minnesota.
Commercial
Solar
Through
our Commercial Solar Energy, Inc. subsidiary (“Commercial Solar Energy”), we design, arrange financing, integrate, install,
and manage systems ranging in size from 50kW (kilowatt) to multi-MW (megawatt) systems primarily for larger commercial and public works
projects. Commercial installations have included installations at office buildings, manufacturing plants, warehouses, service stations,
churches, and agricultural facilities such as farms, wineries, and dairies. Public works installations have included school districts,
local municipalities, federal facilities and higher education institutions. Historically, the Commercial Solar Energy subsidiary participated
in the California Residential solar market. Following the Solcius acquisition in August 2021, all new residential sales are managed under
the Solcius brand. Due to materiality, the company will continue to report the remaining backlog of residential projects in the Commercial
Solar Energy segment, which is expected to be fulfilled within the next year. Commercial Solar Energy primarily operates in California.
Corporate
Information
Our
principal executive offices are located at 1555 N. Freedom Blvd, Provo, Utah 84604 and our telephone number is (385) 497-6955. Our web
site address is www.sunworksusa.com. Information contained in or accessible through our website does not constitute part of this prospectus
supplement.
Implications
of Being a Smaller Reporting Company
We
are a “smaller reporting company” as defined in the Securities Exchange Act of 1934, or the Exchange Act, and have elected
to take advantage of certain of the scaled disclosures available to smaller reporting companies.
The
Offering
The
following summary contains basic information about our common stock and the offering and is not intended to be complete. It does not
contain all of the information that may be important to you. For a more complete understanding of our common stock, you should read the
section entitled “Description of Capital Stock.”
| Issuer |
Sunworks, Inc. |
| |
|
| Common stock offered |
Shares of our common stock
having an aggregate offering price of up to $17,600,000. |
| |
|
| Manner of offering |
“At the market offering”
that may be made from time to time through or to, B. Riley or Northland, as sales agent or principal. See “Plan of Distribution”
beginning on page S-10 of this prospectus. |
| |
|
| Common stock to be outstanding
after this offering(1) |
Up to 60,756,162 shares,
assuming sales of 19,775,280 shares of our common stock in this offering at an offering price at a price of $0.89 per share, which
was the closing price of our common stock on Nasdaq on August 24, 2023. The actual number of shares issued will vary depending on
the sales price under this offering. |
| |
|
| Risk Factors |
Your investment in our
common stock involves substantial risks. You should read carefully the “Risk Factors” included and incorporated by reference
in this prospectus, including the risk factors incorporated by reference from our filings with the SEC. |
| |
|
| NASDAQ symbol |
SUNW |
| |
|
| Use of Proceeds |
We intend to use net proceeds
from this offering for general corporate purposes, including, without limitation, sales and marketing activities, product development,
making acquisitions of assets, businesses, companies or securities, capital expenditures, and for working capital needs. See “Use
of Proceeds” beginning on page S-6 of this prospectus. |
(1)
The common stock outstanding after the offering is based on approximately 40,980,882 shares of our common stock outstanding as
of June 30, 2023 and the sale of 19,775,280 shares of our common stock at an assumed offering price of $0.89 per share, the last reported
sale price of our common stock on NASDAQ on August 24, 2023, and excludes the following:
| |
● |
903,485 shares of our common
stock issuable upon the vesting of restricted stock units granted as of June 30, 2023; |
| |
● |
162,436 shares of our common
stock issuable upon the exercise of options outstanding as of June 30, 2023; |
| |
● |
184,218
shares of our common stock reserved for future
issuance under our 2016 Equity Incentive Plan as of June 30, 2023; |
| |
● |
An estimated 1,791,202
shares of our common stock that may be issuable upon the achievement of certain performance criteria set forth in performance stock
units granted as of June 30, 2023, which performance units may be settled in cash at the discretion of the Company; and |
| |
● |
3,300,000 shares of our
common stock sold in a registered offering that closed August 11, 2023. |
RISK
FACTORS
Before making an investment decision, you should carefully consider the risks described below and discussed in the section titled “Risk
Factors” in our most recent Annual Report on Form 10-K, as well as the risks, uncertainties and additional information set forth
in our SEC reports on Forms 10-K, 10-Q and 8-K and in other documents incorporated by reference in this prospectus. We expect to update
these Risk Factors from time to time in the periodic and current reports that we file with the SEC after the date of this prospectus.
These updated Risk Factors will be incorporated by reference in this prospectus.
Our
business, financial condition or results of operations could be materially adversely affected by any of these risks. The trading price
of our common stock could decline due to any of these risks, and you may lose all or part of your investment. The risks and uncertainties
we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem
immaterial may also affect our business, financial condition, results of operations and prospects. Certain statements below are forward-looking
statements. See the information included under the heading “Note Regarding Forward-Looking Statements.”
Risks
Related to This Offering
You
may experience immediate and substantial dilution.
The
offering price per share in this offering may exceed the net tangible book value per share of our common stock. Assuming that an aggregate
of 19,775,280 shares of our common stock are sold at a price of $0.89 per share pursuant to this prospectus, which was the last reported
sale price of our common stock on Nasdaq on August 24, 2023, for aggregate net proceeds of $17,025,000 after deducting commissions and
estimated aggregate offering expenses payable by us, you would experience immediate dilution of $0.36 per share, representing a difference
between our as adjusted net tangible book value per share as of June 30, 2023 after giving effect to this offering and the assumed offering
price. The exercise of outstanding stock options may result in further dilution of your investment. See the section entitled “Dilution”
on page S-7 of this prospectus for a more detailed illustration of the dilution you would incur if you participate in this offering.
Any future offerings may cause further dilution of any investment in the Company.
Management
will have broad discretion as to the use of the proceeds from this offering and may not use the proceeds effectively.
Because
we have not designated the amount of net proceeds from this offering to be used for any particular purpose, our management will have
broad discretion as to the application of the net proceeds from this offering and could use them for purposes other than those contemplated
at the time of the offering. Our management may use the net proceeds for corporate purposes that may not improve our financial condition
or market value. The failure by our management to apply these funds effectively could result in financial losses that could have a material
adverse effect on our business and cause the price of our common stock to decline.
Future
sales of substantial amounts of our common stock, or the possibility that such sales could occur, could adversely affect the market price
of our common stock.
We
may issue up to $17,600,000 of common stock from time to time in this offering. The issuance from time to time of shares in this offering,
as well as our ability to issue such shares in this offering, could have the effect of depressing the market price or increasing the
market price volatility of our common stock. See “Plan of Distribution” on page S-10 of this prospectus for more information
about the possible adverse effects of our sales under the Sales Agreement.
It
is not possible to predict the actual number of shares we will sell under the Sales Agreement, or the gross proceeds resulting from those
sales.
Subject
to certain limitations in the Sales Agreement and compliance with applicable law, we have the discretion to deliver a placement notice
to the Sales Agents at any time throughout the term of the Sales Agreement. The number of shares that are sold through the Sales Agents
after delivering a placement notice will fluctuate based on a number of factors, including the market price of the common stock during
the sales period, the limits we set with the Sales Agents in any applicable placement notice, and the demand for our common stock during
the sales period. Because the price per share of each share sold will fluctuate during the sales period, it is not currently possible
to predict the number of shares that will be sold or the gross proceeds to be raised in connection with those sales.
The
common stock offered hereby will be sold in “at the market offerings,” and investors who buy shares at different times will
likely pay different prices.
Investors
who purchase shares in this offering at different times will likely pay different prices, and so may experience different levels of dilution
and different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and
numbers of shares sold in this offering. In addition, there is no minimum or maximum sales price for shares to be sold in this offering.
Investors may experience a decline in the value of the shares they purchase in this offering as a result of sales made at prices lower
than the prices they paid.
NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference into this prospectus contain certain forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934,
as amended, or the Exchange Act, in reliance upon the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements include, without limitation, statements regarding the success, safety and efficacy of our products, product
sales, revenues, development timelines, product acquisitions, the Company having sufficient liquidity to conduct operations, and the
Company’s ability to improve its working capital position, and other statements containing forward-looking words, such as, “believes,”
“may,” “could,” “would,” “will,” “expects,” “intends,” “estimates,”
“anticipates,” “plans,” “seeks,” or “continues” or the negative thereof or variation
thereon or similar terminology (although not all forward-looking statements contain these words). Such forward-looking statements are
based on the beliefs of our management as well as assumptions made by and information currently available to our management. Readers
should not put undue reliance on these forward-looking statements. Forward-looking statements are inherently subject to risks and uncertainties,
some of which cannot be predicted or quantified; therefore, our actual results may differ materially from those described in any forward-looking
statements. The risks and uncertainties include those noted in our SEC filings or any applicable prospectus supplement.
We
urge you to consider these factors carefully in evaluating the forward-looking statements contained in this prospectus and any prospectus
supplement. All subsequent written or oral forward-looking statements attributable to our company or persons acting on our behalf are
expressly qualified in their entirety by these cautionary statements. The forward-looking statements included in this prospectus are
made only as of the date of this prospectus, or, in the case of documents referred to or incorporated by reference, the date of those
documents. We undertake no obligation to update publicly any forward-looking statements, whether as a result of new information, future
events or otherwise, except to the extent that we are required to do so by law.
USE
OF PROCEEDS
The
amount of proceeds from this offering will depend upon the number of shares of our common stock sold and the market price at which they
are sold. There can be no assurance that we will be able to sell any shares under or fully utilize the Sales Agreement with the Sales
Agents.
We
intend to use net proceeds from this offering for general corporate purposes, including, without limitation, sales and marketing activities,
product development, making acquisitions of assets, businesses, companies or securities, capital expenditures, and for working capital
needs. We may temporarily invest the net proceeds in short-term, interest-bearing instruments or other investment-grade securities. We
have not determined the amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion
over the allocation of net proceeds.
DILUTION
If
you invest in our common stock, your ownership interest will be diluted to the extent of the difference between the public offering price
per share and the as-adjusted net tangible book value per share after this offering. Our net tangible book value of our common stock
on June 30, 2023 was approximately $14,882,000 or approximately $0.36 per share of common stock based on 40,980,882 shares outstanding.
We calculate net tangible book value per share by dividing the net tangible book value, which is tangible assets less total liabilities,
by the number of outstanding shares of our common stock.
After
giving effect to the sale of our common stock pursuant to this prospectus in the aggregate amount of $17,600,000 at an assumed offering
price of $0.89 per share, the last reported sale price of our common stock on Nasdaq on August 24, 2023, and after deducting commissions
and estimated aggregate offering expenses payable by us, our net tangible book value as of June 30, 2023 would have been $31,907,000,
or $0.53 per share of common stock. This represents an immediate increase in the net tangible book value of $0.17 per share to our existing
stockholders and an immediate dilution in net tangible book value of $0.36 per share to new investors. The following table illustrates
this per share dilution:
| Assumed offering price per share | |
| | | |
$ | 0.89 | |
| Net tangible book value per share as of June 30 2023 | |
$ | 0.36 | | |
| | |
| Increase in net tangible book value per share after this offering | |
$ | 0.17 | | |
| | |
| As-adjusted net tangible book value per share after this offering | |
| | | |
$ | 0.53 | |
| | |
| | | |
| | |
| Dilution per share to new investors in this offering | |
| | | |
$ | 0.36 | |
The
common stock outstanding after the offering is based on approximately shares of our common stock outstanding as of June 30, 2023, and
excludes the following:
| |
● |
903,485 shares of our common
stock issuable upon the vesting of restricted stock units granted as of June 30, 2023; |
| |
● |
162,436 shares of our common
stock issuable upon the exercise of options outstanding as of June 30, 2023; |
| |
● |
184,218
shares of our common stock reserved for future
issuance under our 2016 Equity Incentive Plan as of June 30, 2023; |
| |
● |
An estimated 1,791,202
shares of our common stock that may be issuable upon the achievement of certain performance criteria set forth in performance stock
units granted as of June 30, 2023, which performance units may be settled in cash at the discretion of the Company; and |
| |
● |
3,300,000 shares of our
common stock sold in a registered offering that closed August 11, 2023. |
DIVIDEND
POLICY
We
do not currently anticipate declaring or paying cash dividends on our capital stock in the foreseeable future. We currently intend to
retain all of our future earnings, if any, to finance the operation and expansion of our business. Any future determination relating
to our dividend policy will be made at the discretion of our board of directors and will depend on a number of factors, including future
earnings, capital requirements, future prospects, contractual restrictions and covenants and other factors that our board of directors
may deem relevant.
DESCRIPTION
OF CAPITAL STOCK
The
following is a summary of all material characteristics of our capital stock as set forth in our Certificate of Incorporation, as amended,
and Bylaws. The summary does not purport to be complete and is qualified in its entirety by reference to our Certificate of Incorporation,
as amended, and Bylaws, copies of which have been filed as exhibits to the registration statement of which this prospectus is a part.
Common
Stock
We
may issue shares of our common stock from time to time. We are authorized to issue 50,000,000 shares of common stock, par value $0.001
per share. As of June 30, 2023, there were 40,980,882 shares of common stock issued and outstanding. The holders of common stock are
entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders. The holders of common stock
are not entitled to cumulative voting rights with respect to the election of directors, and as a consequence, minority stockholders will
not be able to elect directors on the basis of their votes alone. Subject to preferences that may be applicable to any shares of preferred
stock issued in the future, holders of common stock are entitled to receive dividends on a pro rata basis as may be declared by our board
out of funds legally available therefor. In the event of a liquidation, dissolution or winding up of our Company, holders of our common
stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preference of any then outstanding
preferred stock. Holders of common stock have no preemptive rights and no right to convert their common stock into any other securities.
There are no redemption or sinking fund provisions applicable to the common stock. All outstanding shares of common stock are, and all
shares of common stock to be outstanding upon completion of this offering will be, fully paid and nonassessable.
Anti-Takeover
Effects of Provisions of Our Certificate of Incorporation, as amended, Bylaws and Delaware Law
We
are subject to the provisions of Section 203 of the Delaware General Corporation Law. Section 203 prohibits a publicly-held Delaware
corporation from engaging in a “business combination” with an “interested stockholder” for a period of three
years after the person became an interested stockholder, unless the business combination is approved in a prescribed manner. A “business
combination” includes mergers, asset sales and other transactions resulting in a financial benefit to the interested stockholder.
Subject to certain exceptions, an “interested stockholder” is a person who, together with affiliates and associates, owns,
or within the prior three years did own, 15% or more of the corporation’s outstanding voting stock.
Our
Certificate of Incorporation, as amended, authorizes the board of directors to issue up to 5,000,000 shares of preferred stock and to
determine the rights, preferences and privileges of these shares of preferred stock without any further vote or action by the stockholders,
and specifies that the authorized number of directors may be changed only by a resolution of the board of directors. The provisions described
above could have the effect of making it more difficult for a third-party to acquire a majority of our outstanding voting stock, or delay,
prevent or deter a merger, acquisition or tender offer in which our stockholders could receive a premium for their shares, a proxy contest
or other change in our management.
Nasdaq
Capital Market
Our
common stock is listed on The Nasdaq Capital Market and traded under the symbol “SUNW.” On August 24, 2023, the last reported
sale price for our common stock on The Nasdaq Capital Market was $0.89 per share.
Transfer Agent and Registrar
The
Transfer Agent and Registrar for our common stock is Continental Stock Transfer & Trust with an address at 1 State Street, 30th
Floor, New York NY 10004-1561.
PLAN
OF DISTRIBUTION
We
have entered into the Sales Agreement with the Sales Agents on August 28, 2023, which we filed as an exhibit to our Current Report on
Form 8-K on August 28, 2023 and incorporate by reference in this prospectus supplement and the accompanying prospectus. Under the terms
of the Sales Agreement, we may offer and sell up to $17,600,000 of shares of our common stock under this prospectus from time to time
through or to the Sales Agents, as sales agent or principal. Sales of shares of our common stock, if any, under this prospectus may be
made by any method deemed to be an “at the market offering” as defined in Rule 415 under the Securities Act. We may instruct
the Sales Agents not to sell common stock if the sales cannot be effected at or above the price designated by us from time to time. We
or the Sales Agents may suspend the offering of common stock upon notice and subject to other conditions.
The
Sales Agents will offer our common stock subject to the terms and conditions of the Sales Agreement as agreed upon by us and the Sales
Agents. Each time we wish to issue and sell common stock under the Sales Agreement, we will notify a Sales Agent of the number or dollar
value of shares to be issued, the time period during which such sales are requested to be made, any limitation on the number of shares
that may be sold in one day, any minimum price below which sales may not be made and other sales parameters as we deem appropriate. Once
we have so instructed such Sales Agent, unless the Sales Agent decline to accept the terms of the notice, such Sales Agent has agreed
to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount
specified on such terms. The obligations of the Sales Agents under the Sales Agreement to sell our common stock are subject to a number
of conditions that we must meet.
We
will pay the Sales Agents commissions for their services in the sale of our common stock at a commission rate equal to up to 3.0% of
the gross sale price per share sold as agents and up to 6.0% of the gross sale price per share sold to the Sales Agents as principals.
We estimate that the total expenses for the offering, excluding compensation payable to the Sales Agents under the Sales Agreement,
will be approximately $50,000. We have also agreed to reimburse the Sales Agents for their reasonable out-of-pocket expenses, including
attorney’s fees, in an amount not to exceed an aggregate of $75,000 incurred in connection with entering into the transactions
contemplated by the Sales Agreement and up to $5,000 per calendar quarter, for ongoing diligence arising from the transactions contemplated
by the Sales Agreement.
Settlement
for sales of common stock will occur on the second business day following the date on which any sales are made, or on some other date
that is agreed upon by us and the Sales Agents in connection with a particular transaction, in return for payment of the net proceeds
to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
In
connection with the sale of the common stock on our behalf, the each Sales Agent will be deemed to be an underwriter within the meaning
of the Securities Act, and its compensation as Sales Agent will be deemed to be underwriting commissions or discounts. We have agreed
to provide indemnification and contribution to the Sales Agents against certain civil liabilities, including liabilities under the Securities
Act.
The
offering pursuant to the Sales Agreement will terminate upon the earlier of (1) the issuance and sale of all shares of our common stock
subject to the sales agreement; and (2) the termination of the Sales Agreement as permitted therein.
The
prospectus in electronic format may be made available on websites maintained by the Sales Agents. The Sales Agents and their affiliates
have in the past and may in the future provide various investment banking and other financial services for us and our affiliates, for
which services they may in the future receive customary fees. To the extent required by Regulation M, the Sales Agents will not engage
in any market making activities involving our common stock while the offering is ongoing under this prospectus supplement. This summary
of the material provisions of the Sales Agreement does not purport to be a complete statement of its terms and conditions.
LEGAL
MATTERS
Certain
legal matters will be passed upon for us by Stradling Yocca Carlson & Rauth, P.C., Newport Beach, California. Certain legal matters
will be passed upon for the Sales Agents by Duane Morris LLP, New York, New York.
EXPERTS
The
consolidated financial statements of Sunworks, Inc. as of December 31, 2022 and 2021 and for each of the two years in the period ended
December 31, 2022, appearing in Sunworks, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2022 have been audited
by KMJ Corbin & Company LLP, independent registered public accounting firm, as set forth in their report, which is incorporated herein
by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority
of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus supplement and the accompanying prospectus form part of a registration statement on Form S-3 that we filed with the SEC. This
prospectus supplement and the accompanying prospectus do not contain all of the information set forth in the registration statement and
the exhibits to the registration statement or the documents incorporated by reference herein and therein. For further information with
respect to us and the securities that we are offering under this prospectus supplement, we refer you to the registration statement and
the exhibits and schedules filed as a part of the registration statement and the documents incorporated by reference herein and therein.
You should rely only on the information contained in this prospectus supplement or the accompanying prospectus or incorporated by reference
herein or therein. We have not authorized anyone else to provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as
of any date other than the date on the front page of this prospectus supplement, regardless of the time of delivery of this prospectus
supplement or any sale of the securities offered hereby.
We
file annual, quarterly and other reports, proxy and information statements and other information with the Securities and Exchange Commission.
The SEC maintains a website that contains reports, proxy statements and other information regarding us. The address of the SEC website
is www.sec.gov. We maintain a website at www.sunworksusa.com. Information contained on our website is not incorporated into this prospectus
supplement and you should not consider information contained on our website to be part of this prospectus supplement.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
This
prospectus is part of a registration statement on Form S-3 filed by us with the SEC. This prospectus does not contain all of the information
set forth in the registration statement, certain parts of which are omitted in accordance with the rules and regulations of the SEC.
For further information about us and the securities offered by this prospectus, we refer you to the registration statement and its exhibits
and schedules which may be obtained as described herein.
The
SEC allows us to “incorporate by reference” information into this prospectus. This means that we can disclose important information
about us and our financial condition to you by referring you to another document filed separately with the SEC. The information incorporated
by reference is considered to be part of this prospectus. This prospectus incorporates by reference the documents listed below that we
have previously filed with the SEC:
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Our Annual Report on Form
10-K for the fiscal year ended December 31, 2022, as filed with the SEC on March 10, 2023, and as amended by our Form 10-K/A filed
with the SEC on May 1, 2023; |
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Our Quarterly Report on
Form 10-Q for the fiscal quarter ended March 31, 2023, as filed with the SEC on May 23, 2023; |
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Our Quarterly Report on
Form 10-Q for the fiscal quarter ended June 30, 2023, as filed with the SEC on August 14, 2023; |
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Our
Current Reports on Form 8-K, as filed with the SEC on January 30, 2023, April 19, 2023, May 10, 2023, June 12, 2023 and August 11, 2023; and
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The
description of our common stock contained in our registration statement on Form
8-A, filed with the SEC on March 3, 2015, as updated by the description of our common shares filed as Exhibit 4.1 to
our Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 10, 2023, including any
amendment or report filed for the purpose of updating such description. |
We
also incorporate by reference into this prospectus all documents filed by us with the SEC pursuant to Sections 12(a), 13(c), 14 or 15(d)
of the Exchange Act prior to the termination of any offering of securities made by this prospectus, including all such documents we may
file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement.
Nothing in this prospectus shall be deemed to incorporate information furnished but not filed with the SEC (including without limitation,
information furnished under Item 2.02 or Item 7.01 of Form 8-K, and any exhibits relating to such information).
Any
statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus shall
be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in the applicable
prospectus supplement or in any other subsequently filed document which also is or is deemed to be incorporated by reference modifies
or supersedes the statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this prospectus.
You
may request a copy of the filings incorporated herein by reference, including exhibits to such documents that are specifically incorporated
by reference, at no cost, by writing or calling us at the following address or telephone number:
Gaylon
Morris
Chief
Executive Officer
Sunworks,
Inc.
1555
N. Freedom Boulevard
Provo,
UT 84604
(385)
497-6955
Statements
contained in this prospectus as to the contents of any contract or other documents are not necessarily complete, and in each instance
investors are referred to the copy of the contract or other document filed as an exhibit to the registration statement, each such statement
being qualified in all respects by such reference and the exhibits and schedules thereto.
$100,000,000
SUNWORKS,
INC.
Common
Stock
Preferred Stock
Warrants
Units
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, preferred stock, warrants or
units having an aggregate initial offering price not to exceed $100,000,000. The preferred stock may be convertible into shares
of our common stock or shares of our preferred stock. The warrants may be exercisable for shares of our common stock or shares
of our preferred stock. The units may consist of any combination of the other types of securities described in this prospectus.
This
prospectus provides a general description of the securities we may offer. Each time we sell a particular class of securities,
we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus supplement may also
add, update or change information in this prospectus. You should read this prospectus and any prospectus supplement, as well as
the documents incorporated by reference or deemed to be incorporated by reference herein or therein, carefully before you invest
in any of the securities offered pursuant to this prospectus.
This
prospectus may not be used to offer or sell our securities unless accompanied by a prospectus supplement relating to the offered
securities.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters or dealers
or through a combination of these methods on a continuous or delayed basis. For additional information on the methods of sale,
you should refer to the section entitled “Plan of Distribution” in this prospectus. We will describe the plan of distribution
for any particular offering of our securities in a prospectus supplement. If any agents, underwriters or dealers are involved
in the sale of any securities with respect to which this prospectus is being delivered, we will set forth in a prospectus supplement
the names of such agents or underwriters and any applicable fees, commissions, discounts and over-allotment options. We will also
set forth in a prospectus supplement the price to the public of such securities and the net proceeds that we expect to receive
from such sale.
Our
common stock is listed on the NASDAQ Capital Market and traded under the symbol “SUNW.” On January 22, 2021, the last
reported sale price for our common stock on the NASDAQ Capital Market was $22.90 per share.
INVESTING
IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE
HEADING “RISK FACTORS” BEGINNING ON PAGE 4 OF THIS PROSPECTUS, AS WELL AS THE RISKS AND UNCERTAINTIES DESCRIBED UNDER
A SIMILAR HEADING IN ANY APPLICABLE PROSPECTUS SUPPLEMENT AND IN THE DOCUMENTS THAT WE INCORPORATE BY REFERENCE HEREIN OR THEREIN.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is February 3, 2021
TABLE OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, using a
“shelf” registration process. Under this shelf registration process, we may from time to time offer and sell any combination
of the securities described in this prospectus in one or more offerings with an aggregate initial offering price not to exceed
$100,000,000. We have provided to you in this prospectus a general description of the securities we may offer. Each time we offer
or sell any of our securities under this prospectus, we will, to the extent required by law, provide a prospectus supplement that
will contain specific information about the terms of the offering.
References
herein to “we,” “us,” “Sunworks,” and “the Company” are to Sunworks, Inc. and
its wholly owned subsidiaries Sunworks United, Inc., MD Energy, Inc. and Plan B Enterprises, Inc.
We
may add, update or change any of the information contained in this prospectus or in any accompanying prospectus supplement we
may authorize to be delivered to you. To the extent there is a conflict between the information contained in this prospectus and
any accompanying prospectus supplement, you should rely on the information in the prospectus supplement, provided that if any
statement in one of these documents is inconsistent with a statement in another document having a later date—for example,
a document incorporated by reference in this prospectus or any prospectus supplement—the statement in the document having
the later date modifies or supersedes the earlier statement. Any statement so modified will be deemed to constitute a part of
this prospectus only as so modified, and any statement so superseded will be deemed not to constitute a part of this prospectus.
This prospectus, together with any accompanying prospectus supplement, includes all material information relating to an offering
pursuant to this registration statement.
You
should rely only on the information contained in this prospectus, in any accompanying prospectus supplement, or in any document
incorporated by reference herein or therein. We have not authorized anyone to provide you with any different information. We take
no responsibility for, and can provide no assurance as to the reliability of, any other information that others may provide to
you. The information contained in this prospectus, in any applicable prospectus supplement, and in the documents incorporated
by reference herein or therein is accurate only as of the date such information is presented. Our business, financial condition,
results of operations and future prospects may have changed since those respective dates.
This
prospectus and any accompanying prospectus supplement does not constitute an offer to sell or the solicitation of an offer to
buy any securities other than the registered securities to which they relate, nor does this prospectus and any accompanying prospectus
supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to
whom it is unlawful to make such offer or solicitation in such jurisdiction. This prospectus may not be used to offer or sell
our securities unless accompanied by a prospectus supplement relating to the offered securities.
The
registration statement containing this prospectus, including the exhibits to the registration statement, provides additional information
about us and the securities offered pursuant to this prospectus. For a more complete understanding of the offering of the securities,
you should refer to the registration statement, including its exhibits. The registration statement can be read on the SEC’s
website or at the SEC’s offices mentioned under the heading “Where You Can Find More Information.”
SPECIAL
NOTE REGARDING FORWARD-LOOKING INFORMATION
This
prospectus, any accompanying prospectus supplement, and the documents incorporated by reference herein and therein, contain forward-looking
statements within the meaning of the federal securities laws. These forward-looking statements are intended to qualify for the
safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. All statements other than statements
of historical fact included in this prospectus, any accompanying prospectus supplement, or the documents incorporated by reference
herein or therein, are forward looking statements. We have attempted to identify forward-looking statements by using words such
as “may,” “believe,” “will,” “could,” “project,” “anticipate,”
“expect,” “estimate,” “should,” “continue,” “potential,” “plan,”
“forecasts,” “goal,” “seek,” “intend,” other forms of these words or similar words
or expressions or the negative thereof.
Our
forward-looking statements are based on our management’s current assumptions and expectations of future events and trends,
which affect or may affect our business, strategy, operations or financial performance. Although we believe that these forward-looking
statements are based upon reasonable assumptions, they are subject to numerous known and unknown risks and uncertainties and are
made in light of information currently available to us. Many important factors, in addition to the factors described in this prospectus,
may materially and adversely affect our results as indicated in our forward-looking statements. You should read this prospectus,
any accompanying prospectus supplement, and the documents we incorporate by reference herein and therein, completely and with
the understanding that our actual future results may be materially different from and worse than what we expect.
Moreover,
we operate in an evolving environment. New risk factors and uncertainties emerge from time to time and it is not possible for
our management to predict all risk factors and uncertainties, nor can we assess the impact of all factors on our business or the
extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any
forward-looking statements.
Forward-looking
statements speak only as of the date they were made, and, except to the extent required by law or the rules of the NASDAQ Stock
Market, we undertake no obligation to update or review any forward-looking statement because of new information, future events
or other factors. You should, however, review the risks and uncertainties we describe in the reports we will file from time to
time with the SEC, after the date of this prospectus. See the information included under the heading “Where You Can Find
More Information.”
Forward-looking
statements involve risks and uncertainties and are not guarantees of future performance. As a result of the risks and uncertainties
described above, the forward-looking statements discussed in this prospectus might not occur and our future results and performance
may differ materially from the information provided in these forward-looking statements due to, but not limited to, the factors
mentioned above. Because of these uncertainties, you should not place undue reliance on these forward-looking statements when
making an investment decision.
We
qualify all of our forward-looking statements by these cautionary statements.
ABOUT
THE COMPANY
The
following is a summary of what we believe to be the most important aspects of our business. Please read the additional information
in the sections entitled “Incorporation of Certain Documents by Reference” and “Where You Can Find More Information.”
Overview
We
provide photovoltaic, or PV, based power systems for the agricultural, commercial, industrial (ACI) public works, and residential
markets in California, Nevada, Massachusetts, Oregon, New Jersey and Hawaii. We have direct sales and/or operations personnel
in California, Nevada, Massachusetts, and Oregon. Through our operating subsidiaries, we design, arrange financing, integrate,
install, and manage systems ranging in size from 2kW (kilowatt) for residential projects to multi MW (megawatt) systems for larger
ACI and public works projects. ACI installations have included installations at office buildings, manufacturing plants, warehouses,
service stations, churches, and agricultural facilities such as farms, wineries, and dairies. Public works installations have
included school districts, local municipalities, federal facilities and higher education institutions. We provide a full range
of installation services to our solar energy customers including design, system engineering, procurement, permitting, construction,
grid connection, warranty, system monitoring and maintenance.
We
currently operate in one segment based upon our organizational structure and the way in which our operations are managed and evaluated.
For the first nine months of 2020, approximately 74% of our 2020 revenue was from installations for the ACI and public works markets
and approximately 26% of our revenue was from installations for the residential market. For the first nine months of 2019 approximately
69% of our revenue was from installations for the ACI and public works markets and approximately 31% of our revenue was from installations
for the residential market. Approximately 69% of our 2019 revenue was from sales to the ACI and public works markets, and approximately
31% of our 2019 revenue was from sales to the residential market. Approximately 72% of our 2018 revenue was from sales to the
ACI and public works markets, and approximately 28% of our 2018 revenue was from sales to the residential market.
Corporate
Information
We
were originally incorporated in Delaware on January 30, 2002 as MachineTalker, Inc. In July 2010, we changed our company name
to Solar3D, Inc. On January 31, 2014, we acquired 100% of the stock of Solar United Network, Inc., a California corporation, now
operating as Sunworks United, Inc. On March 2, 2015, we acquired MD Energy, Inc. On December 1, 2015, we acquired Plan B Enterprises,
Inc. through a merger of Plan B Enterprises, Inc. into our wholly owned subsidiary, Elite Solar Acquisition Sub., Inc. On March
1, 2016 we changed our name to Sunworks, Inc. with simultaneous NASDAQ stock symbol change from SLTD to SUNW.
Our
principal executive offices are located at 1030 Winding Creek Road, Suite 100, Roseville, CA 95678 and our telephone number is
(916) 409-6900. Our web site address is www.sunworksusa.com. Information contained in or accessible through our website is not
part of, and is not incorporated into, this prospectus.
Implications
of Being a Smaller Reporting Company
We
are a “smaller reporting company” as defined in the Securities Exchange Act of 1934, or the Exchange Act, and have
elected to take advantage of certain of the scaled disclosures available to smaller reporting companies.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before making an investment decision, you should carefully consider the risks
described in the sections entitled “Risk Factors” in our most recent Annual Report on Form 10-K and subsequent Quarterly
Reports on Form 10-Q, as filed with the SEC, which are incorporated by reference in this prospectus in their entirety, as well
as any amendments or updates to our risk factors reflected in subsequent filings with the SEC, including any applicable prospectus
supplement. If any of these risks actually occur, our business, financial condition, results of operations and future prospects
could be materially and adversely affected. In that case, the trading price of our securities could decline and you might lose
all or part of your investment. For more information, see “Where You Can Find More Information.”
The
risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known
to us or that we currently deem immaterial may also affect our business, financial condition or results of operations.
This
prospectus and the documents we incorporate by reference in this prospectus contain forward-looking statements that involve risks
and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a
result of certain factors, including the risks and uncertainties mentioned elsewhere in this prospectus. For more information,
see “Special Note Regarding Forward-Looking Information.”
USE
OF PROCEEDS
We
will retain broad discretion over the use of the net proceeds from the sale of our securities offered hereby. Except as described
in any prospectus supplement or any related free writing prospectus that we may authorize to be provided to you, we currently
intend to use the net proceeds from the sale of our securities offered hereby for working capital and general corporate purposes,
which may include capital expenditures, debt repayment, research and development, sales and marketing and general and administrative
expenses. We may also use a portion of the net proceeds to acquire or invest in businesses, products and technologies that are
complementary to our own, although we have no current plans, commitments or agreements with respect to any such acquisitions or
investments as of the date of this prospectus. We will set forth in the applicable prospectus supplement or free writing prospectus
our intended use for the net proceeds received from the sale of any securities sold pursuant to the prospectus supplement or free
writing prospectus. Our management will have broad discretion in the allocation of the net proceeds from this offering.
Pending
the application of the net proceeds, we may invest the net proceeds in short-term, investment grade, interest-bearing securities,
certificates of deposit or direct or guaranteed obligations of the U.S. government.
THE
SECURITIES WE MAY OFFER
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, preferred stock, warrants, and/or
units having an aggregate initial offering price not to exceed $100,000,000. The preferred stock may be convertible into shares
of our common stock or shares of our preferred stock. The warrants may be exercisable for shares of our common stock or shares
of our preferred stock. The units may consist of any combination of the other types of securities described in this prospectus.
In this prospectus, we refer to the common stock, preferred stock, warrants and units that we may offer collectively as “securities.”
This
prospectus provides a general description of the securities we may offer. Each time we sell any of our securities under this prospectus,
we will, to the extent required by law, provide a prospectus supplement that will contain specific information about the terms
of the offering. The prospectus supplement may also add, update or change information in this prospectus. For more information,
see “About this Prospectus.”
DESCRIPTION
OF CAPITAL STOCK
The
following is a summary of all material characteristics of our capital stock as set forth in our certificate of incorporation,
as amended, and bylaws. The summary does not purport to be complete and is qualified in its entirety by reference to our certificate
of incorporation, as amended, and bylaws, copies of which have been filed as exhibits to our SEC filings. For more information,
see “Where You Can Find More Information.”
Common
Stock
We
may issue shares of our common stock from time to time. We are authorized to issue 50,000,000 shares of common stock, par value
$0.001 per share. As of January 22, 2021, there were 23,835,258 shares of common stock issued and outstanding. The holders of
common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders. The
holders of common stock are not entitled to cumulative voting rights with respect to the election of directors, and as a consequence,
minority stockholders will not be able to elect directors on the basis of their votes alone. Subject to preferences that may be
applicable to any shares of preferred stock issued in the future, holders of common stock are entitled to receive dividends on
a pro rata basis as may be declared by our board out of funds legally available therefor. In the event of a liquidation, dissolution
or winding up of our Company, holders of our common stock are entitled to share ratably in all assets remaining after payment
of liabilities and the liquidation preference of any then outstanding preferred stock. Holders of common stock have no preemptive
rights and no right to convert their common stock into any other securities. There are no redemption or sinking fund provisions
applicable to the common stock. All outstanding shares of common stock are, and all shares of common stock to be outstanding upon
completion of this offering will be, fully paid and nonassessable.
Preferred
Stock
As
of January 22, 2021, there were no shares of our preferred stock outstanding. Pursuant to the terms of our certificate of incorporation,
as amended, our board of directors is authorized, subject to limitations prescribed by Delaware law, to issue up to 5,000,000
shares of preferred stock, par value $0.001 per share, in one or more series, to establish from time to time the number of shares
to be included in each series, and to fix the designation, powers, preferences and rights of the shares of each series and any
of its qualifications, limitations or restrictions, in each case without further action by our stockholders. Our board of directors
also can increase or decrease the number of shares of any series of preferred stock, but not below the number of shares of that
series then outstanding. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights
that could adversely affect the voting power or other rights of the holders of our common stock. The issuance of preferred stock,
while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things,
have the effect of delaying, deferring or preventing a change in our control or the removal of management and could adversely
affect the market price of our common stock and the voting and other rights of the holders of our common stock.
Whenever
preferred stock is to be offered and sold pursuant to this prospectus, we will file a prospectus supplement relating to that offer
and sale which will specify (in each case to the extent applicable):
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the
title and stated value of the preferred stock; |
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the
number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred
stock; |
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the
dividend rate, period and payment date, and method of calculation of dividends; |
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whether
dividends are cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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any
listing of the preferred stock on any securities exchange; |
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the
provision for redemption of the preferred stock; |
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the
terms and conditions upon which the preferred stock will be convertible into any other class of capital stock, including the
conversion price; |
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voting
rights of the preferred stock; |
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preemption
rights; |
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the
relative ranking and preferences of the preferred stock as to dividend rights and rights upon the liquidation, dissolution
or winding up of our affairs; |
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limitations
on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock
as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock. |
The
Delaware General Corporation Law, or DGCL, provides that the holders of preferred stock will have the right to vote separately
as a class on any proposed fundamental change in the rights of the preferred stock. This right is in addition to any voting rights
that may be provided for in the applicable certificate of designation.
All
shares of preferred stock offered by this prospectus will, when issued, be fully paid and nonassessable and will not have any
preemptive or similar rights.
Anti-Takeover
Effects of Provisions of Our Certificate of Incorporation, Bylaws and Delaware Law
We
are subject to the provisions of Section 203 of the Delaware General Corporation Law. Section 203 prohibits a publicly-held Delaware
corporation from engaging in a “business combination” with an “interested stockholder” for a period of
three years after the person became an interested stockholder, unless the business combination is approved in a prescribed manner.
A “business combination” includes mergers, asset sales and other transactions resulting in a financial benefit to
the interested stockholder. Subject to certain exceptions, an “interested stockholder” is a person who, together with
affiliates and associates, owns, or within the prior three years did own, 15% or more of the corporation’s outstanding voting
stock.
Our
certificate of incorporation, as amended, authorizes the board of directors to issue up to 5,000,000 shares of preferred stock
and to determine the rights, preferences and privileges of these shares of preferred stock without any further vote or action
by the stockholders, and specifies that the authorized number of directors may be changed only by a resolution of the board of
directors. The provisions described above could have the effect of making it more difficult for a third-party to acquire a majority
of our outstanding voting stock, or delay, prevent or deter a merger, acquisition or tender offer in which our stockholders could
receive a premium for their shares, a proxy contest or other change in our management.
NASDAQ
Capital Market
Our
common stock is listed on NASDAQ Capital Market and traded under the symbol “SUNW.” On January 22, 2021, the last
reported sale price for our common stock on NASDAQ Capital Market was $22.90 per share.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is Continental Stock Transfer & Trust with an address at 1 State Street,
30th Floor, New York NY 10004-1561.
DESCRIPTION
OF WARRANTS
We
may offer and sell, from time to time, warrants for the purchase of shares of common stock and/or shares of preferred stock. We
may issue warrants independently or together with common stock and/or preferred stock, and the warrants may be attached to or
separate from those securities. If we issue warrants, they will be evidenced by warrant agreements or warrant certificates issued
under one or more warrant agreements, which will be contracts between us and the holders of the warrants or an agent for the holders
of the warrants. The forms of warrant agreements or warrant certificates, as applicable, relating to the warrants will be filed
as exhibits to the registration statement of which this prospectus is a part and/or will be incorporated by reference from reports
that we file with the SEC.
The
following summary of material provisions of the warrants and warrant agreements are subject to, and qualified in their entirety
by reference to, all of the provisions of the warrant agreement and warrant certificate applicable to a particular series of warrants.
We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete warrant
agreements and warrant certificates that contain the terms of the warrants.
Whenever
warrants are to be issued and sold pursuant to this prospectus, we will file a prospectus supplement relating to that offer and
sale which will specify (in each case as applicable):
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the
number of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and
the price at which such number of shares may be purchased upon such exercise; |
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the
designation, stated value and terms (including, without limitation, liquidation, dividend, conversion and voting rights) of
the series of preferred stock purchasable upon exercise of warrants to purchase preferred stock; |
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the
date, if any, on and after which the warrants and the related common stock or preferred stock will be separately transferable; |
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the
terms of any rights to redeem or call the warrants; |
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the
date on which the right to exercise the warrants will commence and the date on which the right will expire; and |
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any
additional terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement
of the warrants. |
Each
warrant will entitle its holder to purchase the number of shares of common stock or preferred stock at the exercise price set
forth in (or calculable as set forth in) the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus
supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that
we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants
will become void.
A
holder of warrant certificates may exchange them for new warrant certificates of different denominations, present them for registration
of transfer, and exercise them as indicated in the applicable prospectus supplement. Until any warrants to purchase common stock
or preferred stock are exercised, the holders of the warrants will not have any rights of holders of the underlying common stock
or preferred stock, including any voting rights or any rights to receive dividends or payments upon any liquidation, dissolution
or winding up on the common stock or preferred stock, if any.
DESCRIPTION
OF UNITS
We
may offer and sell, from time to time, units comprised of one or more of the other securities described in this prospectus in
any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations of a holder of each included security. If we issue units, they
will be evidenced by unit agreements or unit certificates issued under one or more unit agreements, which will be contracts between
us and the holders of the units or an agent for the holders of the units. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before
a specified date. The forms of unit agreements or unit certificates, as applicable, relating to the units will be filed as exhibits
to the registration statement of which this prospectus is part of and/or will be incorporated by reference from reports that we
file with the SEC.
The
following summary of material provisions of the units and unit agreements are subject to, and qualified in their entirety by reference
to, all of the provisions of the unit agreements applicable to the units. We urge you to read the applicable prospectus supplement
and any related free writing prospectus, as well as the complete unit agreements that contain the terms of the units.
Whenever
units are to be issued and sold pursuant to this prospectus, we will file a prospectus supplement relating to that offer and sale
which will specify (in each case as applicable):
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the
title of the series of units; |
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identification
and description of the separate securities comprising the units; |
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the
price or prices at which the units will be issued; |
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the
date, if any, on and after which the securities comprising the units will be separately transferable; and |
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any
other terms of the units and their securities. |
PLAN
OF DISTRIBUTION
We
may sell our securities from time to time in any manner permitted by the Securities Act, including any one or more of the following
ways:
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through
agents; |
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to
or through underwriters; |
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to
or through broker-dealers (acting as agent or principal); |
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in
“at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market
maker or into an existing trading market, on an exchange or otherwise; and/or |
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directly
to purchasers, through a specific bidding or auction process or otherwise. |
The
securities may be sold at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices
relating to the prevailing market prices or at negotiated prices.
Offers
to purchase offered securities may be solicited by agents designated by us from time to time. Any agent involved in the offer
or sale of the offered securities in respect of which this prospectus is delivered will be named, and any commissions payable
by us will be set forth, in the applicable prospectus supplement. Unless otherwise set forth in the applicable prospectus supplement,
any agent will be acting on a reasonable best efforts basis for the period of its appointment. Any agent may be deemed to be an
underwriter, as that term is defined in the Securities Act, of the offered securities so offered and sold.
We
will set forth in a prospectus supplement the terms of the offering of our securities, including:
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the
name or names of any agents, underwriters or dealers; |
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the
type of securities being offered; |
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the
purchase price of our securities being offered and the net proceeds we expect to receive from the sale; |
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any
over-allotment options under which underwriters may purchase additional securities from us; |
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any
agency fees or underwriting discounts and commissions and other items constituting agents’ or underwriters’ compensation; |
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the
public offering price; |
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any
discounts or concessions allowed or reallowed or paid to dealers; and |
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any
securities exchanges on which such securities may be listed. |
If
offered securities are sold to the public by means of an underwritten offering, either through underwriting syndicates represented
by managing underwriters or directly by the managing underwriters, we will execute an underwriting agreement with an underwriter
or underwriters, and the names of the specific managing underwriter or underwriters, as well as any other underwriters, will be
set forth in the applicable prospectus supplement. In addition, the terms of the transaction, including commissions, discounts
and any other compensation of the underwriters and dealers, if any, will be set forth in the applicable prospectus supplement,
which prospectus supplement will be used by the underwriters to make resales of the offered securities. If underwriters are utilized
in the sale of the offered securities, the offered securities will be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions, including:
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transactions
on the NASDAQ Capital Market or any other organized market where the securities may be traded; |
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in
the over-the-counter market; |
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in
negotiated transactions; or |
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under
delayed delivery contracts or other contractual commitments. |
We
may grant to the underwriters options to purchase additional offered securities to cover over-allotments, if any, at the public
offering price with additional underwriting discounts or commissions, as may be set forth in the applicable prospectus supplement.
If we grant any over-allotment option, the terms of the over-allotment option will be set forth in the applicable prospectus supplement.
We
may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase 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. We will describe the conditions to these contracts and the commissions we must
pay for solicitation of these contracts in the prospectus supplement.
We
may indemnify agents, underwriters and dealers against specified liabilities, including liabilities incurred under the Securities
Act, or to contribution by us to payments they may be required to make in respect of such liabilities. Agents, underwriters or
dealers, or their respective affiliates, may be customers of, engage in transactions with or perform services for us or our respective
affiliates, in the ordinary course of business.
Unless
otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is traded on the NASDAQ Capital Market. We may elect to list any other class
or series of securities on any exchange and, in the case of our common stock, on any additional exchange. However, unless otherwise
specified in the applicable prospectus supplement, we will not be obligated to do so. It is possible that one or more underwriters
may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of
the offered securities.
Any
underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance
with Regulation M under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Over-allotment involves sales in
excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions
involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution
is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when
the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters
may discontinue any of the activities at any time.
To
comply with the securities laws of certain states, if applicable, the securities offered by this prospectus will be offered and
sold in those states only through registered or licensed brokers or dealers.
LEGAL
MATTERS
Certain
legal matters, including the validity of the issuance of the securities offered by this prospectus, will be passed upon for us
by Stradling Yocca Carlson & Rauth, P.C., Newport Beach, California.
EXPERTS
The
financial statements of Sunworks, Inc. appearing in Sunworks, Inc.’s Annual Report on Form 10-K for the years ended December
31, 2019 and 2018 have been audited by Liggett & Webb, P.A., independent registered public accounting firm, as set forth in
their report thereon, included therein, and incorporated herein by reference. Such financial statements are incorporated herein
by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate” into this prospectus information that we file with the SEC in other documents. This
means that we can disclose important information to you by referring to other documents that contain that information. Any information
that we incorporate by reference into this prospectus is considered part of this prospectus.
Information
contained in this prospectus and information that we file with the SEC in the future and incorporate by reference in this prospectus
automatically modifies and supersedes previously filed information, including information in previously filed documents or reports
that have been incorporated by reference in this prospectus, to the extent the new information differs from or is inconsistent
with the old information. Any statement so modified will be deemed to constitute a part of this prospectus only as so modified,
and any statement so superseded will be deemed not to constitute a part of this prospectus. For more information, see “About
this Prospectus.”
We
incorporate by reference, as of their respective dates of filing, the documents listed below that we have filed with the SEC and
any future documents that we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including any
documents filed after the date on which the registration statement of which this prospectus is a part is initially filed until
the offering of the securities covered by this prospectus has been completed, other than, in each case, documents or information
deemed to have been “furnished” and not “filed” in accordance with SEC rules:
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2019, or the Annual Report, filed with the SEC on March
30, 2020; |
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|
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2020, as filed with the SEC on May 7, 2020, our Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30, 2020, as filed with the SEC on August 10, 2020, and our Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30, 2020, as filed with the SEC on November 2, 2020; |
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|
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the
information specifically incorporated by reference into our Annual Report on Form 10-K from our Definitive Proxy Statement
on Schedule 14A, filed with the SEC on July 8, 2020; |
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|
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our
Current Reports on Form 8-K (other than information furnished rather than filed), as filed with the SEC on January 29, 2020,
March 17, 2020, April 30, 2020, June 3, 2020, August 10, 2020, September 2, 2020, September 25, 2020, October 13, 2020, November 2, 2020, November 12, 2020, November 25, 2020, December 8, 2020, December 21, 2020 and January 13, 2021; and |
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the
description of our common stock contained in our registration statement on Form 8-A, filed with the SEC on March 3, 2015,
as updated by the description of our common shares filed as Exhibit 4.3 to our Annual Report on Form 10-K for the year ended
December 31, 2019 filed with the SEC on March 30, 2020, including any amendment or report filed for the purpose of updating
such description. |
These
filings have not been included in or delivered with this prospectus. We will provide to each person, including any beneficial
owner to whom this prospectus is delivered, a copy of any document that is incorporated by reference in this prospectus. You may
obtain a copy of these documents, at no cost, from our website (www.sunworksusa.com) or by contacting us using the following information:
Gaylon
Morris
Chief
Executive Officer
Sunworks,
Inc.
1030
Winding Creek Road, Suite 100
Roseville,
California 95678
(916)
409-6900
Exhibits
to the documents will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus.
You
should rely only on the information contained in this prospectus, in any accompanying prospectus supplement, or in any document
incorporated by reference herein or therein. We have not authorized anyone to provide you with any different information. We take
no responsibility for, and can provide no assurance as to the reliability of, any other information that others may provide to
you. The information contained in this prospectus, in any applicable prospectus supplement, and in the documents incorporated
by reference herein or therein is accurate only as of the date such information is presented. Our business, financial condition,
results of operations and future prospects may have changed since those respective dates.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports and other information with the SEC. Our filings with the SEC are available on the SEC’s
website at www.sec.gov, which contains reports, proxy and information statements, and other information regarding issuers that
file electronically.
This
prospectus is part of a registration statement that we filed with the SEC. As permitted by SEC rules, this prospectus and any
accompanying prospectus supplement that we may file, which form a part of the registration statement, do not contain all of the
information that is included in the registration statement. The registration statement contains more information regarding us
and our securities, including certain exhibits. You can obtain a copy of the registration statement from the SEC at the address
listed above or from the SEC’s website.
$17,600,000
SUNWORKS,
INC.
Common
Stock
PROSPECTUS
SUPPLEMENT
B.
Riley Securities
|
Northland Capital Markets |
August
28, 2023
Sunworks (NASDAQ:SUNW)
過去 株価チャート
から 11 2024 まで 12 2024
Sunworks (NASDAQ:SUNW)
過去 株価チャート
から 12 2023 まで 12 2024
