Form S-1MEF Envision Solar Internati

As filed with the Securities and Exchange Commission on April 15, 2019

 

Registration No. 333-     

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-1

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

ENVISION SOLAR INTERNATIONAL, INC.

(Name of Registrant in its Charter)

 

 

Nevada	3674	26-1342810
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification No.)

 

5660 Eastgate Dr., San Diego, California 92121

Telephone: (858) 799-4583

(Address and telephone number of principal executive offices)

 

Desmond Wheatley

Chief Executive Officer

5660 Eastgate Dr.

San Diego, California 92121

Telephone: (858) 799-4583

(Name, address and telephone number of agent for service)

 

Copies to:

Mark J. Richardson, Esq. Richardson & Associates 1453 Third Street Promenade, Suite 315 Santa Monica, California 90401 (310) 393-9992

Barry I. Grossman, Esq. Sarah E. Williams, Esq. Jonathan H. Deblinger, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas, 11th Floor New York, New York 10105 (212) 370-1300

 

Approximate Date of Proposed Sale to the Public: As soon as practicable after the effective date of this registration statement.

 

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [X]

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [   ]

 

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [   ]

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer	[   ]	Accelerated filer	[   ]
Non-accelerated filer	[   ]	Smaller reporting company	[X]
Emerging Growth Company	[   ]

 

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of Securities to be Registered	Proposed Maximum Aggregate Offering Price (1)	Amount of Registration Fee
Units consisting of shares of Common Stock, par value $0.001 per share, and Warrants to purchase shares of Common Stock, par value $0.001 per share (2)	$2,300,000	$278.76
Common Stock included as part of the Units	Included with Units above	___
Warrants to purchase shares of Common Stock included as part of the Units (3)	Included with Units above	___
Representatives’ Warrant to purchase Common Stock (3)	___	___
Shares of Common Stock issuable upon exercise of the Warrants (4)(5)	$2,415,000	$292.76
Shares of Common Stock issuable upon exercise of Representatives’ Warrants (5)(6)	$126,500	$15.34
TOTAL	$4,841,500	$586.86

 

(1)

Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended. The Registrant previously registered an aggregate offering price of $11,500,000 on a Registration Statement on Form S-1 (File No. 333-226040) filed by the Company on July 2, 2018, as amended, and declared effective by the Securities and Exchange Commission on April 15, 2019. In accordance with Rule 462(b) under the Securities Act, an additional offering amount of $2,300,000  is hereby registered, representing no more than 20% of the maximum aggregate offering price under the Registration Statement on Form S-1 (File No. 333-226040). In no event will the maximum aggregate offering price of all securities issued pursuant to this Registration Statement and the Registration Statement on Form S-1 (File No. 333-226040) exceed that registered under such registration statements.

 

(2)

Includes Units which may be issued upon exercise of a 45-day option granted to the underwriters to cover over-allotments, if any.

 

(3)

In accordance with Rule 457(g) under the Securities Act, because the shares of the Registrant’s common stock underlying the Warrants and Representative’s warrants are registered hereby, no separate registration fee is required with respect to the warrants registered hereby.

 

(4)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(g) under the Securities Act of 1933, as amended, based on an estimated proposed maximum aggregate offering price of $2,415,000, or 105% of $2,300,000. There will be issued one warrant to purchase one share of common stock for every unit offered. The Warrants are exercisable at a per share price of 105% of the unit public offering price.

 

(5)

Includes shares of common stock which may be issued upon exercise of additional warrants which may be issued upon exercise of 45-day option granted to the underwriters to cover over-allotment, if any.

 

(6)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(g) under the Securities Act of 1933, as amended, based on an estimated proposed maximum aggregate offering price of $126,500, or 110% of $115,000 (5% of $2,300,000). Assumes the full exercise of the underwriter’s over-allotment option.

 

In the event of a stock split, stock dividend, or similar transaction involving the common stock, the number of shares registered shall automatically be increased to cover the additional shares of common stock issuable pursuant to Rule 416 under the Securities Act.

 

This Registration Statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(b) under the Securities Act.

 

 

 

EXPLANATORY NOTE

 

Envision Solar International, Inc., a Nevada corporation (the “Company”), is filing this Registration Statement with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 462(b) under the Securities Act of 1933, as amended. This Registration Statement relates to the public offering of securities contemplated by the Registration Statement on Form S-1 (File No. 333-226040) filed by the Company on July 2, 2018, as amended, and declared effective by the SEC on April 15, 2019 (the “Prior Registration Statement”). The Company is filing this Registration Statement for the sole purpose of increasing by no more than 20% the amount of securities registered under the Prior Registration Statement.

 

The contents of the Prior Registration Statement, including the prospectus contained therein, and any and all prospectus supplements and all exhibits thereto, are incorporated by reference into this Registration Statement in their entirety and are deemed to be part of this Registration Statement.

 

 

 

 

 

 

 

 

 

PART II

 

INFORMATION NOT REQUIRED IN THE PROSPECTUS

 

All exhibits previously filed or incorporated by reference in the registrant’s Registration Statement on Form S-1, as amended (File No. 333-226040), are incorporated by reference into, and shall be deemed to be a part of this filing, except for the following, which are filed herewith:

 

Exhibit No.		Description
5.1		Opinion of Weintraub Tobin Chediak Coleman Grodin, Law Corporation
23.1		Consent of Salberg & Company, P.A.
23.2		Consent of Weintraub Tobin Chediak Coleman Grodin, Law Corporation (included in Exhibit 5.1)

 

 

 

 

 

 

 

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on April 15, 2019.

 

	ENVISION SOLAR INTERNATIONAL, INC.
	By: /s/Desmond Wheatley
	Desmond Wheatley, Chairman of the Board and Chief Executive Officer (Principal Executive Officer)

 

 

POWER OF ATTORNEY

  

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.

 

By: /s/ Desmond Wheatley	Dated: April 15, 2019
Desmond Wheatley, Chairman of the Board and Chief Executive       Officer (Principal Executive Officer)
By: /s/ Chris Caulson	Dated: April 15, 2019
Chris Caulson, Chief Financial Officer (Principal Financial and       Accounting Officer)
By: /s/ Robert C. Schweitzer	Dated: April 15, 2019
Robert C. Schweitzer, Director
By: /s/ Peter Davidson	Dated: April 15, 2019
Peter Davidson, Director
By: /s/ Anthony Posawatz	Dated: April 15, 2019
Anthony Posawatz, Director

 

 

 

 

 

 

 

 

 

Exhibit 5.1

 

 

April 15, 2019

 

 

 

Envision Solar International, Inc.

5660 Eastgate Dr.

San Diego, California 92121

 

 

Ladies and Gentlemen:

 

We have acted as counsel to Envision Solar International, Inc., a Nevada corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), of a Registration Statement on Form S-1 (the “Registration Statement”) pertaining to the issuance and sale by the Company of (i) 12,778 units (each, a “Unit”), with each Unit consisting of one share of common stock, $0.001 par value per share (each a “Share”) and a warrant to purchase one Share (each a “Common Warrant” and each Share underlying a Common Warrant, a “Common Warrant Share”), and (ii) underwriter’s warrants to purchase up to 12,778 Shares (each an “Underwriter’s Warrant” and, together with the Common Warrants, the “Warrants,” and each Share underlying an Underwriter’s Warrant, an “Underwriter’s Warrant Share,” and together with the Common Warrant Shares, the “Warrant Shares”) to be issued to Maxim Group LLC (the “Underwriter”) pursuant to an underwriting agreement entered into by and between the Company and the Underwriter (the “Underwriting Agreement”). The Registration Statement is being filed pursuant to Rule 462(b) under the Securities Act. The contents of the Registration Statement on Form S-1, as amended (No. 333-226040) (the “Prior Registration Statement”), including the prospectus included therein (the “Prospectus”), are incorporated by reference in the Registration Statement.

 

In rendering the opinion set forth herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable.

 

In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all items submitted to us as originals, the conformity with originals of all items submitted to us as copies, and the authenticity of the originals of such copies. As to any facts material to the opinions expressed herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and public officials.

 

Based upon and subject to the foregoing, we are of the opinion that: (i) the Shares have been duly authorized for issuance and, when issued, delivered and paid for in accordance with the terms of the Underwriting Agreement, the Shares will be validly issued, fully paid and nonassessable; (ii) the Units have been duly authorized for issuance and, when issued, delivered and paid for in accordance with the terms of the Underwriting Agreement, the Units will be validly issued, fully paid and nonassessable; (iii) the Warrants, when executed and delivered by the Company in accordance with and in the manner described in the Registration Statement and the Underwriting Agreement, will be validly issued and will constitute a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, moratorium and similar laws affecting creditors’ rights generally and equitable principles of general applicability; and (iii) the Warrant Shares, when issued and sold by the Company and delivered by the Company upon valid exercise thereof and against receipt of the exercise price therefor, in accordance with and in the manner described in the Registration Statement and the Warrants, will be validly issued, fully paid and non-assessable.

 

We consent to the inclusion of this opinion as an exhibit to the Registration Statement and further consent to all references to us under the caption “Legal Matters” in the Prospectus. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

 

Our opinion is limited to the federal laws of the United States, the laws of the State of New York and the laws of the State of Nevada.

 

 

Very truly yours,

 

/s/WEINTRAUB TOBIN CHEDIAK COLEMAN GRODIN                          

 

WEINTRAUB TOBIN CHEDIAK COLEMAN GRODIN

 

law corporation

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

 

 

We hereby consent to the incorporation by reference in the Registration Statement on Form S-1, of Envision Solar International, Inc. and Subsidiary of our report dated March 20, 2019, on the consolidated financial statements of Envision Solar International, Inc. as of December 31, 2018, and 2017 and for each of the two years in the period ended December 31, 2018, included in Pre-Effective Amendment Number 10 to the Registration Statement of Envision Solar International, Inc. on Form S-1 filed on April 15, 2019, and to the reference to our firm under the heading “Experts” in the prospectus.

 

 

 

/s/ Salberg & Company, P.A.                      

 

SALBERG & COMPANY, P.A.

Boca Raton, Florida

April 15, 2019

 

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