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.
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
| Item 3. |
Incorporation of Documents by Reference. |
The following documents
filed by the Company with the Commission are hereby incorporated by reference:
(a) The
Company’s Annual Report on Form 10-K for the year ended December 31, 2021, filed on March
14, 2022;
(b) The
Company’s Quarterly Reports on Form 10-Q for the quarters ended March
31, 2022, June
30, 2022 and September
30, 2022;
(c) The
Company’s Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02
or Item 7.01 of Form 8-K and exhibits accompanying such reports that are related to such items) filed on January
4, 2022, February
15, 2022, February
16, 2022, February
28, 2022, March
16, 2022, March
18, 2022, March
23, 2022, March
25, 2022, March
29, 2022, April
13, 2022, April
13, 2022, April
28, 2022, May
19, 2022, June
8, 2022, June
15, 2022, August
15, 2022, September
22, 2022, October
3, 2022, November
10, 2022, November
10, 2022, and December 9, 2022;
(d) All
other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) since the end of the fiscal year covered by the Annual Report referred to in (a) above (other than information
deemed to have been “furnished” rather than “filed” in accordance with the Commission’s rules); and
(e) The
description of the Company’s Common Stock contained in the Company’s registration statement on Form
8-A, which was filed with the SEC on January 24, 2003, including any amendment or report filed with the SEC for the
purpose of updating such description, including the description contained in Exhibit
4.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the Commission
on March 31, 2021.
In addition, all reports and other documents
subsequently filed (but not furnished) by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment to this Registration Statement that indicates that all of the shares of Common Stock
offered hereby have been sold or that deregisters all shares of the Common Stock then remaining unsold, shall be deemed to be incorporated
by reference in and a part of this Registration Statement from the date of filing of such reports and documents; except as to any
document, or portion of or exhibit to a document, that is “furnished” to (rather than “filed” with) the
Commission.
Any statement contained
in a document incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently
filed document that also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes
such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
| Item 6. |
Indemnification of Directors and Officers. |
The Company is subject
to Minnesota Statutes Chapter 302A, the Minnesota Business Corporation Act (the “Corporation Act”). Section 302A.521
of the Corporation Act provides in substance that, unless prohibited by its articles of incorporation or bylaws, a corporation
must indemnify an officer or director who is made or threatened to be made a party to a proceeding by reason of the former or present
official capacity of the person against judgments, penalties, fines, including, without limitation, excise taxes assessed against
the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and
disbursements, incurred by such person in connection with the proceeding, if certain criteria are met. These criteria, all of which
must be met by the person seeking indemnification, are (a) that such person has not been indemnified by another organization or
employee benefit plan for the same judgments, penalties, fines, including, without limitation, excise taxes assessed against the
person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and disbursements,
incurred by the person in connection with the proceeding with respect to the same acts or omissions; (b) that such person must
have acted in good faith; (c) that no improper personal benefit was obtained by such person and such person satisfied certain statutory
conflicts of interest provisions, if applicable; (d) that in the case of a criminal proceeding, such person had no reasonable cause
to believe that the conduct was unlawful; and (e) that, in the case of acts or omissions occurring in such person’s performance
in an official capacity, such person must have acted in a manner such person reasonably believed was in the best interests of the
corporation or, in certain limited circumstances, not opposed to the best interests of the corporation. In addition, Section 302A.521,
subd. 3 requires payment by the Company, upon written request, of reasonable expenses in advance of final disposition in certain
instances. A decision as to required indemnification is made by a majority of the disinterested board of directors present at a
meeting at which a disinterested quorum is present, or by a designated committee of disinterested directors, by special legal counsel,
by the disinterested shareholders, or by a court.
The Company’s
Amended and Restated Articles of Incorporation (the “Articles”) eliminate the personal liability of a director to the
Company or its shareholders for monetary damages for breach of fiduciary duty as a director, except under certain circumstances
involving breaches of the director’s duty of loyalty to the Company or its shareholders; acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of law; violations of sections 302A.559 or 80A.23 of the Minnesota
Statutes; or any transaction from which the director derived any improper personal benefit. Article 10 of the Company’s
Restated Bylaws, as amended, provide for the broad indemnification of the directors and officers of the Company and for advancement
of litigation expenses to the fullest extent required or permitted by the Articles and current Minnesota law.
The Company also maintains insurance to
assist in funding indemnification of directors and officers for certain liabilities.
| Exhibit |
|
Description |
| |
|
|
| 4.1 |
|
Third Amended and Restated Articles of Incorporation of Pineapple Energy Inc. effective as of December 9, 2022 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on December 9, 2022) |
| |
|
|
| 4.2 |
|
Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock of Communications Systems, Inc. (n/k/a Pineapple Energy Inc.) (included in Exhibit 4.1) |
| |
|
|
| 4.3 |
|
Restated Bylaws of Pineapple Energy Inc., as amended, effective as of April 13, 2022 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on April 13, 2022) |
| |
|
|
| 4.4 |
|
Pineapple Energy Inc. 2022 Equity Incentive Plan, as amended through December 7, 2022 (incorporated by reference to Exhibit No. 10.2 to the Company’s Current Report on Form 8-K filed on December 9, 2022) |
| |
|
|
| 5.1 |
|
Opinion of Faegre Drinker Biddle & Reath LLP |
| |
|
|
| 23.1 |
|
Consent of Baker Tilly US, LLP, Independent Registered Public Accounting Firm for Communications Systems, Inc. |
| |
|
|
| 23.2 |
|
Consent of Baker Tilly US, LLP, Independent Registered Public Accounting Firm for Pineapple Energy, LLC |
| |
|
|
| 23.3 |
|
Consent of Baker Tilly US, LLP, Independent Registered Public Accounting Firm for Hawaii Energy Connection, LLC and E-Gear, LLC |
| |
|
|
| 23.4 |
|
Consent of Faegre Drinker Biddle & Reath LLP (included in Exhibit 5.1) |
| |
|
|
| 24.1 |
|
Power of Attorney (included on signature page hereto) |
| |
|
|
| 107.1 |
|
Filing Fee Table |
(a) The Company hereby undertakes:
(1) To file, during
any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the
prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
(iii) To include any
material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the Registration Statement is on Form S-8, and the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;
and
(2) That, for the purpose
of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from
registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(b) The Company hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the
foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by
a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
