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As filed with the Securities and Exchange Commission on November 12, 2021

Registration No. 333-          

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Form S-4

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

 

COMMUNICATIONS SYSTEMS, INC.

(Exact name of Registrant as specified in its charter)

 

Minnesota

 

3661

 

41-0957999

(State or other jurisdiction of
incorporation or organization)

 

(Primary Standard Industrial
Classification Code Number)

 

(I.R.S. Employer
Identification Number)

 

10900 Red Circle Drive

Minnetonka, Minnesota 55343

(952) 996-1674

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

Mark Fandrich

Chief Financial Officer

Communications Systems, Inc.

10900 Red Circle Drive

Minnetonka, Minnesota 55343

(952) 996-1674

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Copies to:

 

Barbara Rummel, Esq.

Peter Jaslow, Esq.

Thomas G. Lovett, Esq.

April Hamlin, Esq.

Ballard Spahr LLP

80 South 8th Street, Suite 2000

Minneapolis, MN 55402-2119

(612) 371-3211

Roger H.D. Lacey

Executive Chair/

Interim Chief Executive Officer

Communications Systems, Inc.

10900 Red Circle Drive

Minnetonka, Minnesota 55343

(952) 996-1674

Kyle Udseth

Chief Executive Officer

Pineapple Energy LLC

315 East Lake Street, Suite 301

Wayzata, MN 55391

(952) 582-6460

 

Steven Kennedy, Esq.

Jonathan Zimmerman, Esq.

Jonathan Nygren, Esq.

Faegre Drinker Biddle & Reath LLP

2200 Wells Fargo Center

Minneapolis, Minnesota 55402

(612) 766-7000

 

Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this Registration Statement becomes effective and after all conditions under the merger agreement to consummate the proposed merger are satisfied or waived.

 

If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended, 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, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Securities Exchange Act of 1934.

 

Large accelerated filer

Accelerated filer

Non-accelerated filer

Smaller reporting company

 

 

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)         ☐

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)    ☐

 

 

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

Title of Each Class of

Securities to be Registered

Amount

to be

Registered

Proposed

Maximum
Offering Price
Per Share

Proposed

Maximum
Aggregate

Offering Price

Amount of
Registration Fee (3)

Communications Systems, Inc. Common Stock, $0.05 par value per share

33,600,000 (1)

N/A

$126,840,000 (2)

$11,758.07

 

 

 

 

 

(1)

Based on the maximum number of shares of common stock, par value $0.05 per share of the registrant, Communications Systems, Inc. (“CSI”), estimated to be issued as merger consideration in connection with the merger pursuant to the Agreement and Plan of Merger, dated March 1, 2021, by and among CSI, Helios Merger Co., Pineapple Energy LLC (“Pineapple”), Lake Street Solar LLC, and Randall D. Sampson. 

 

 

(2)

Estimated solely for purposes of calculating the registration fee required by Section 6(b) of the Securities Act, and calculated pursuant to Rule 457 under the Securities Act, and based upon the average of the high and low prices per share of the Company’s common stock on November 8, 2021, as reported by the Nasdaq Stock Market.

 

 

(3)

Determined in accordance with Section 6(b) of the Securities Act at a rate equal to 0.0000927 multiplied by the proposed maximum aggregate offering price

 

 

 

 

 

 

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. 

 

 

 

 

 

 

The information in this proxy statement/prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is declared effective. This proxy statement/prospectus is not an offer to sell and it is not soliciting an offer to buy these securities in any jurisdiction where the offer, solicitation or sale is not permitted.

 

Preliminary – Subject to Completion, Dated November 12, 2021

 

COMMUNICATIONS SYSTEMS, INC.
10900 Red Circle Drive
Minnetonka, MN 55343

 

Dear Fellow Shareholder:

 

You are invited to attend a special meeting of shareholders of Communications Systems, Inc. (“CSI,” “Communications Systems,” “we” or “us”), which will be held on              ,               , 2021, at 10:00 a.m. Central Time (CT), unless postponed or adjourned to a later time or date. The special meeting will be online and a completely virtual meeting of shareholders due to the ongoing public health impact of the coronavirus (COVID-19) pandemic. The accompanying proxy statement/prospectus contains important information concerning the proposals to be presented at the special meeting, specific information about the special meeting and how to cast your vote on the proposals. We encourage you to read the accompanying proxy statement/prospectus in its entirety. Capitalized terms used in this letter are explained fully in the accompanying proxy statement/prospectus.

 

On March 1, 2021, CSI, Helios Merger Co., a Minnesota corporation and a wholly-owned subsidiary of CSI (“Merger Sub”), and Pineapple Energy LLC, a Delaware limited liability company (“Pineapple”), entered into a merger agreement, pursuant to which Merger Sub will merge with and into Pineapple, with Pineapple surviving the merger as a wholly-owned subsidiary of CSI. The merger and the other transactions contemplated by the merger agreement are referred to collectively as the “Pineapple Merger Transaction.” Following the merger, CSI will be renamed “Pineapple Holdings, Inc.” and is sometimes referred to herein as the “combined company.” As consideration for the merger, CSI will issue shares of its common stock to the members of Pineapple and the members of Pineapple will become the majority owners of CSI’s outstanding common stock upon the closing of the merger.

 

Pursuant to the merger agreement, at the effective time of the merger, the outstanding Pineapple units held by members of Pineapple immediately prior to the effective time will be automatically cancelled and represent only the right to receive shares of CSI common stock. As Base Consideration, CSI has agreed to issue to the members of Pineapple 15.6 million shares of CSI’s common stock. The Base Consideration will be increased for any outstanding convertible notes issued by Pineapple in a pre-closing financing referred to as the Convertible Note Financing, which will convert into additional shares of CSI common stock at a rate of one additional share for every $2.00 in unpaid principal and accrued interest on outstanding convertible notes. The Base Consideration will be decreased for any outstanding indebtedness of Pineapple at the closing of the merger in excess of $22.5 million, which will reduce the Base Consideration at a rate one share for every $2.00 of excess indebtedness. In addition to the Base Consideration, certain members of Pineapple may receive up to an additional 13.0 million shares of CSI common stock referred to as the Earnout Consideration, upon the occurrence of milestones specified in the merger agreement.

 

Immediately prior to the effective time, Pineapple will complete its acquisition of two Hawaiian solar companies, Hawaii Energy Connection, LLC and E-Gear, LLC, and the equity owners of these two Hawaiian companies will receive cash and Pineapple units that will be cancelled at the effective time of the merger in exchange for a portion of the CSI common stock to be issued under the merger agreement.

 

The shareholders of CSI as of the close of the business day immediately preceding the effective time of the merger will receive one contractual non-transferable contingent value right, or CVR, per share of CSI common stock then held by them, which will entitle the CVR holder to a portion of the proceeds of dispositions of CSI’s pre-merger assets after the effective time of the merger.

 

At the effective time, CSI’s shareholders will continue to own and hold their existing shares of CSI common stock. The Pineapple Merger Transaction will not alter the rights, privileges or nature of the issued and outstanding shares of CSI common stock.

 

 

 

 

In addition, in connection with the Pineapple Merger Transaction, on September 15, 2021, CSI entered into a securities purchase agreement with certain investors, referred to as the PIPE Investors, to make a $32.0 million private placement investment referred to as the PIPE Offering. Under the terms of the securities purchase agreement, for their $32.0 million investment, the PIPE Investors will receive shares of newly authorized CSI Series A convertible preferred stock convertible at a price of $3.40 per share into CSI common stock, together with five-year warrants to purchase an additional $32.0 million of common shares at that same price. The PIPE Offering is expected to close immediately following the consummation of the merger. Thus, the PIPE Investors will invest in the combined company and will not be entitled to any cash dividends prior to the effective time nor to the CVRs issued to CSI shareholders as of the close of the business day immediately preceding the effective time. The combined company intends to use the proceeds from the PIPE Offering to fund the cash portion of the purchase price to acquire Hawaii Energy Connection, LLC and E-Gear, LLC assets, transaction expenses, and for working capital to support Pineapple’s growth strategy of acquiring leading local and regional solar installers around the United States. It is expected that the Pre-Closing Acquisition, the merger and the PIPE Offering will close sequentially on the same date.

 

Immediately following the consummation of the merger, assuming CSI issues only the Base Consideration in the merger and not accounting for additional shares of CSI common stock that are issuable in connection with the Earnout Consideration, the Convertible Note Financing, incentive plan, or the PIPE Offering, pre-merger CSI shareholders are expected to own approximately 38.4% of the combined company common stock outstanding immediately following the effective time of the merger, as well as one CVR per share of CSI common stock held by them as of the close of the business day immediately preceding the effective time, and the pre-merger Pineapple unit holders are expected to own approximately 61.6% of the combined company common stock outstanding immediately following the effective time of the merger.

 

Immediately following the consummation of both the merger and the PIPE Offering, the pre-merger CSI shareholders are expected to own approximately 28.0% of the combined company, on a fully-diluted basis, the pre-merger Pineapple unit holders are expected to own approximately 44.9% of the combined company, on a fully-diluted basis, and the PIPE Investors are expected to own approximately 27.1% of the combined company, on a fully-diluted basis. As part of the fully diluted share ownership, the foregoing calculation (i) includes the Base Consideration that CSI will issue in the merger, (ii) excludes any additional shares of CSI common stock that are issuable in connection with the merger such as the Earnout Consideration or the Convertible Note Financing, (iii) includes the shares of the combined company common stock that are issuable on conversion of the Series A convertible preferred stock and exercise of warrants issued in the PIPE Offering, and (iv) excludes any shares of combined company common stock issued in connection with awards under the 2021 Equity Incentive Plan shareholders are being asked to approve at the special meeting.

 

When the Pineapple Merger Transaction is effective, our new corporate name will be Pineapple Holdings, Inc. We will continue to be a publicly-traded company with the new Nasdaq ticker symbol “PEGY” that is focused on the growing home solar industry, primarily operating through our Pineapple, Hawaii Energy Connection and E-Gear subsidiary businesses. Following the merger, we will continue our efforts to monetize the legacy CSI assets and properties for the benefit of the CVR holders. Upon completion of the merger, the combined company’s initial board of directors will be set at seven and initially be comprised of four directors, two of the current members of the CSI board of directors, Roger H.D. Lacy, and Randall D. Sampson, and two directors associated with Pineapple, Kyle Udseth and Scott Honour. Kyle Udseth, currently the Chief Executive Officer of Pineapple, also will be the Chief Executive Officer of the combined company and Mark Fandrich, the current Chief Financial Officer of CSI, will continue as the Chief Financial Officer of the combined company.

 

Shares of CSI common stock are currently listed on the Nasdaq Global Market under the symbol “JCS.” On                 , 2021, the last trading day before the date of this proxy statement/prospectus, the closing sale price of CSI common stock was $         per share.

 

CSI is holding a special meeting of shareholders in order to obtain the shareholder approvals necessary to complete the merger, the PIPE Offering and other matters. At the special meeting, CSI is asking its shareholders to approve nine proposals, each as described in this proxy statement/prospectus.

 

After careful consideration, the CSI board of directors has unanimously approved the merger agreement and the transactions contemplated thereby, and the CSI board of directors unanimously recommends that its shareholders

 

 

 

 

vote to approve the merger agreement and the Pineapple Merger Transaction. Accordingly, the CSI board of directors unanimously recommends that its shareholders vote “FOR” each of the Pineapple Merger Proposal, the Merger Issuance Proposal, the PIPE Issuance Proposal, the Authorized Share Amendment Proposal, the Article IX Amendment Proposal, the Reverse Stock Split Proposal, the 2021 Equity Incentive Plan Proposal, the Advisory Compensation Proposal and the Adjournment Proposal described in this proxy statement/prospectus.

 

More information about CSI, Pineapple, the Pineapple Merger Transaction and each of the proposals are contained in this proxy statement/prospectus. CSI urges you to read this proxy statement/prospectus carefully and in its entirety. IN PARTICULAR, YOU SHOULD CAREFULLY CONSIDER THE MATTERS DISCUSSED UNDER “RISK FACTORS” BEGINNING ON PAGE 28.

 

Your vote is very important. Whether or not you plan to attend the special meeting of shareholders, please vote by proxy over the internet, by telephone or by mailing the enclosed proxy card or by following the instructions for voting that accompanied your proxy materials.

 

We cannot complete the Pineapple Merger Transaction without the approval of the holders of two-thirds of the shares that were outstanding on the record date. Accordingly, it is extremely important that you vote your shares. Please vote promptly so that your shares will be represented, to avoid delays in completing the Pineapple Merger Transaction and to save the company the cost of additional solicitation.

 

The CSI board of directors believes the strategy of re-inventing CSI through the Pineapple Merger Transaction and related transactions has allowed and will continue to allow us the ability to deliver immediate value to our shareholders while retaining an opportunity for long-term appreciation. CSI is excited about the opportunities the merger will bring to the CSI shareholders.

 

We look forward to your support at the special meeting.

 

Sincerely,

 

Roger H. D. Lacey
Executive Chairman
Communications Systems, Inc.

 

Neither the Securities and Exchange Commission nor any state securities regulatory agency has approved or disapproved the Pineapple Merger Transaction, passed upon the merits or fairness of the Pineapple Merger Transaction or passed upon the adequacy or accuracy of the disclosure in the accompanying proxy statement. Any representation to the contrary is a criminal offense.

 

This proxy statement/prospectus is dated                     , 2021 and is first being mailed to shareholders on or about                 , 2021.

 

 

 

 

The information in this proxy statement/prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is declared effective. This proxy statement/prospectus is not an offer to sell and it is not soliciting an offer to buy these securities in any jurisdiction where the offer, solicitation or sale is not permitted.

 

Preliminary – Subject to Completion, Dated November 12, 2021

 

COMMUNICATIONS SYSTEMS, INC.
10900 Red Circle Drive
Minnetonka, Minnesota 55343

 

NOTICE OF SPECIAL MEETING OF SHAREHOLDERS

 

To be held on             ,           , 2021

 

To Shareholders of Communications Systems, Inc.:

 

A special meeting of shareholders of Communications Systems, Inc., a Minnesota corporation, will be held on                ,               , 2021 at 10:00 a.m. CT for the following purposes:

 

 

1.

To approve the Agreement and Plan of Merger dated as of March 1, 2021 (the “merger agreement”) by and among Communications Systems, Inc., Helios Merger Co., a wholly owned subsidiary of CSI (“Merger Sub”), Pineapple Energy LLC (“Pineapple”), Lake Street Solar LLC, as the Pineapple Members’ Representative (the “Members’ Representative”), and Randall D. Sampson, as the CSI Shareholders’ Representative (the “Shareholders’ Representative”) pursuant to which Merger Sub will merge with and into Pineapple with Pineapple surviving the merger as a wholly owned subsidiary of CSI. We refer to the transactions contemplated by the merger agreement as the “Pineapple Merger Transaction” and this proposal as the “Pineapple Merger Proposal.”

 

 

2.

To approve the issuance of shares of common stock of Communications Systems, Inc. in connection with the merger agreement. We refer to this proposal as the “Merger Issuance Proposal.”

 

 

3.

To approve the issuance of shares of common stock of Communications Systems, Inc. to investors in connection with the PIPE Offering (as defined herein). We refer to this proposal as the “PIPE Issuance Proposal.”

 

 

4.

To approve an amendment to the articles of incorporation of Communications Systems, Inc. to increase the authorized shares of common stock to 150 million. We refer to this proposal as the “Authorized Share Amendment Proposal.”

 

 

5.

To approve an amendment to the articles of incorporation of Communications Systems, Inc. to eliminate Article IX relating to business combinations. We refer to this proposal as the “Article IX Amendment Proposal.”

 

 

6.

To approve a reverse stock split of the outstanding shares of CSI common stock, at a ratio within a range of 1-for-3 to 1-for-5, as determined by the CSI board of directors. We refer to this proposal as the “Reverse Stock Split Proposal.”

 

 

7.

To approve the Pineapple Holdings, Inc. 2021 Equity Incentive Plan. We refer to this proposal as the “2021 Equity Incentive Plan Proposal.”

 

 

8.

To approve, on an advisory, non-binding basis, certain compensation that has, will or may be paid or become payable to the Communications Systems, Inc. named executive officers in connection with the Pineapple Merger Transaction. We refer to this proposal as the “Advisory Compensation Proposal.”

 

 

9.

To approve the adjournment or postponement of the special meeting to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the Pineapple Merger Proposal, the Merger Issuance Proposal, the PIPE Issuance Proposal, the Authorized Share Amendment Proposal or the Reverse Stock Split Proposal. We refer to this proposal as the “Adjournment Proposal.” 

 

 

 

The special meeting will be a virtual meeting of shareholders.

 

Except with respect to shares allocated to you as a participant in the CSI Employee Stock Purchase Plan (ESOP), you may attend the online meeting and vote your shares electronically during the special meeting via the internet by visiting: www.virtualshareholdermeeting.com/JCS2021SM2. You will need the 16-digit control number that is printed in the box marked by the arrow on your proxy card or on the voting instructions that accompanied your proxy materials. We recommend that you log in at least fifteen minutes before the start of the special meeting to ensure that you are logged in when the special meeting starts.

 

Please note that if you hold shares of CSI common stock through the CSI ESOP, your voting instructions for these shares must be received by 11:59 p.m. Eastern Time on                       , 2021. You may not vote the CSI common stock allocated to you through the ESOP electronically during the special meeting.

 

The CSI board of directors has fixed                        , 2021, as the record date for the determination of shareholders entitled to notice of, and to vote at, the special meeting and any adjournment or postponement thereof. Only holders of record of shares of our common stock at the close of business on the record date are entitled to notice of, and to vote at, the special meeting. At the close of business on the record date, we had 9,720,627 shares of common stock outstanding and entitled to vote.

 

The CSI board of directors has unanimously approved the Pineapple Merger Transaction. The CSI board of directors unanimously recommends that you vote “FOR” the Pineapple Merger Proposal and “FOR” each of the other proposals.

 

Your vote is very important. Please vote your shares by proxy as promptly as possible whether or not you plan to attend the special meeting.

 

By Order of the Board of Directors,

 

Roger H. D. Lacey
Executive Chairman
Communications Systems, Inc.
Minnetonka, Minnesota

 

            , 2021

 

 

 

Table of Contents

 

ABOUT THIS PROXY STATEMENT/PROSPECTUS

1

CERTAIN DEFINED TERMS

1

QUESTIONS AND ANSWERS

3

SUMMARY OF THE PROXY STATEMENT/PROSPECTUS 10

Information About the Parties to the Merger

10

Merger Agreement

11

Reasons for the Pineapple Merger Transaction

11

Opinion of CSI’s Financial Advisor

11

Voting Agreement

12

CVR Agreement

12

PIPE Offering

13

Special Meeting

13

Interests of Certain Persons in the Pineapple Merger Transaction

15

Conditions to Closing of the Merger

15

Solicitation of Transactions

17

Change of CSI Board Recommendation

17

Termination

17

When the Pineapple Merger Transaction is Expected to be Completed

18

Effects on CSI if the Pineapple Merger Transaction is Completed

18

Effects on CSI if the Pineapple Merger Transaction is Not Completed

19

Nasdaq Listing

19

No Appraisal or Dissenters’ Rights

19

Anticipated Accounting Treatment of the Merger

19

Certain Material U.S. Federal Income Tax Consequences of the Merger

19

Certain Material U.S. Federal Income Tax Consequences of the CVRs and the Reverse Stock Split

20

Risk Factors

20

SELECTED HISTORICAL AND UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL DATA

21

Selected Historical Financial Data of CSI

21

Selected Historical Financial Data of Pineapple

22

Selected Historical Financial Data of HEC and E-Gear

23

Selected Unaudited Pro Forma Condensed Combined Financial Data of CSI and Pineapple

24

Comparative Historical and Unaudited Pro Forma Per Share Data

25

MARKET PRICE AND DIVIDEND INFORMATION

26

CSI Common Stock

26

CSI Dividends and Combined Company Dividend Policy

27

Pineapple Units

27

RISK FACTORS

28

Risks Related to the Proposed Merger and Other Transactions

28

Risks Related to Pineapple

32

Risks Related to the Combined Company Following the Merger

34

CAUTION CONCERNING FORWARD-LOOKING STATEMENTS

51

THE PARTIES

52

Communications Systems, Inc.

52

Helios Merger Co.

52

Pineapple Energy LLC

52

i 

 

ABOUT THE SPECIAL MEETING

53

Date, Time and Place

53

Special Voting Information for ESOP Participants

53

Purposes of the Special Meeting

53

Recommendation of CSI Board of Directors

54

Record Date and Outstanding Shares

54

Casting and Revoking a Proxy

54

Quorum; Required Vote for Each Matter

55

Solicitation of Proxies

57

Other Matters

57

OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF CSI

58

OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF PINEAPPLE

60

PROPOSAL #1: PINEAPPLE MERGER PROPOSAL

61

Parties to the Merger Agreement

61

Background of the Pineapple Merger Transaction

62

Past Contacts, Transactions or Negotiations

70

Reasons for the Pineapple Merger Transaction and Recommendation of the CSI Board of Directors

70

Opinion of the Financial Advisor to CSI’s Board of Directors

74

Certain Financial Forecasts Utilized in Connection with the Merger

87

When the Pineapple Merger Transaction is Expected to be Completed

89

Effects on CSI if the Pineapple Merger Transaction is Completed and the Nature of Our Business Following the Transaction

89

Effects on CSI if the Pineapple Merger Transaction is Not Completed

90

No Appraisal or Dissenters’ Rights

90

Interests of Our Directors and Executive Officers in the Pineapple Merger Transaction

90

Nasdaq Listing

92

Anticipated Accounting Treatment

92

Certain Material U.S. Federal Income Tax Consequences of the Merger

93

Vote Required

96

PROPOSAL #2: MERGER ISSUANCE PROPOSAL

97

Overview

97

Reasons for the Recommendation of the CSI Board of Directors

97

Vote Required

98

PROPOSAL #3: PIPE ISSUANCE PROPOSAL

99

Overview

99

Reasons for the Recommendation of the CSI Board of Directors

99

Vote Required

100

PROPOSAL #4: AUTHORIZED SHARE AMENDMENT PROPOSAL

101

Overview

101

Reasons for the Recommendation of the CSI Board of Directors

101

Potential Adverse Effects of the Amendment

102

Potential Anti-Takeover Effects

102

Appraisal or Dissenters’ Rights

103

Effectiveness of Amendment

103

Vote Required

103

PROPOSAL #5: ARTICLE IX AMENDMENT PROPOSAL

104

Overview

104

Reasons for the Recommendation of the CSI Board of Directors

105

ii 

 

Potential Adverse Effects of the Amendment

106

Appraisal or Dissenters’ Rights

106

Effectiveness of Amendment

106

Vote Required

106

PROPOSAL #6: REVERSE STOCK SPLIT PROPOSAL

107

Overview

107

Reasons for the Recommendation of the CSI Board of Directors

107

Principal Effects of the Reverse Stock Split

108

Certain Material U.S. Federal Income Tax Consequences of the Reverse Stock Split

112

Appraisal or Dissenters’ Rights

113

Vote Required

114

PROPOSAL #7: 2021 EQUITY INCENTIVE PLAN PROPOSAL

115

Overview

115

Reasons for the Recommendation of the CSI Board of Directors

115

Description of 2021 Equity Incentive Plan

116

U.S. Federal Income Tax Consequences of Awards

121

New Plan Benefits

122

Vote Required

122

PROPOSAL #8: ADVISORY COMPENSATION PROPOSAL

123

Overview

123

Vote Required

123

PROPOSAL #9: ADJOURNMENT PROPOSAL

124

Overview

124

Vote Required

124

THE MERGER AGREEMENT

125

Form, Effective Time and Closing of Merger

125

Effects of Merger; Merger Consideration

125

Merger Consideration

126

Payment of Merger Consideration

127

Contingent Value Rights

127

Management and Officers of the Combined Company and Pineapple Following the Merger

127

Dissenters’ Rights and Appraisal Rights

128

Representations and Warranties

128

Conduct of Business Pending the Merger; Covenants

129

Conditions to the Closing of the Merger

131

No Solicitation

135

Member and Shareholder Approval; No Change in the CSI Board Recommendation

136

Other Agreements

138

Termination of the Merger Agreement

139

Termination Fees

140

Amendment

140

Indemnification by Pineapple Class A and Class P Holders

140

AGREEMENTS RELATING TO THE MERGER

142

Voting Agreement

142

Contingent Value Rights Agreement

143

PIPE Offering Agreements

150

Hercules-Pineapple Sungevity Asset Purchase and Hercules Debt Financing

154

Pre-Closing Acquisition Agreement

155

iii 

 

INFORMATION ABOUT CSI

157

Overview of CSI’s Business

157

Employees

159

Description of Property

159

Legal Proceedings

160

CSI EXECUTIVE COMPENSATION

161

CSI MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

171

  Comparison of Six Months Ended June 30, 2021 and 2020

171

  Comparison of Year Ended December 31, 2020 and 2019

175

INFORMATION ABOUT PINEAPPLE

180

Overview of Pineapple’s Business

180

Our Market Opportunity

180

Our Strategy

181

Our Strengths

182

Our Products and Services

182

Competition

183

Intellectual Property

183

Government Regulation

184

Government Incentives

184

Employees

185

Properties

185

Legal Proceedings

185

PINEAPPLE EXECUTIVE COMPENSATION

186

PINEAPPLE MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

187

HEC AND E-GEAR MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

193

MANAGEMENT OF THE COMBINED COMPANY

199

RELATED PARTY TRANSACTIONS

202

CSI Transactions

202

Pineapple Transactions

202

DESCRIPTION OF CSI CAPITAL STOCK

205

Authorized Shares of Capital Stock

205

Preferred Stock

205

Common Stock

207

Anti-Takeover Effects of Provisions of the CSI Articles of Incorporation, the CSI Bylaws and Minnesota Law

207

Properly Brought Business

207

Shareholder Nominations

208

Shareholder Meetings

208

Voting Percentage Approval Required for Designated Action

208

Provisions of Minnesota Law

209

iv 

 

COMPARISON OF RIGHTS OF CSI SHAREHOLDERS AND PINEAPPLE MEMBERS

210

LEGAL MATTERS

221

EXPERTS

221

HOUSEHOLDING OF MATERIALS

221

SHAREHOLDER PROPOSALS

221

WHERE YOU CAN FIND MORE INFORMATION

222

FINANCIAL STATEMENTS

223

 

APPENDIX A-1:

Agreement and Plan of Merger dated March 1, 2021 by and among Communications Systems, Inc., Helios Merger Co. and Pineapple Energy LLC, Lake Street Solar LLC, and Randall D. Sampson.

   

APPENDIX A-2:

Form of Contingent Value Rights Agreement by and among Communications Systems, Inc., the Rights Agent and the CVR Holders’ Representative.

   

APPENDIX A-3:

Voting Agreement dated March 1, 2021 by and among Communications Systems, Inc., Pineapple Energy LLC and certain holders of capital stock of Communications Systems, Inc.

   

APPENDIX B:

Opinion of Craig-Hallum Capital Group LLC dated March 1, 2021.

   

APPENDIX C:

Amended and Restated Securities Purchase Agreement dated as of September 15, 2021 between Communications Systems, Inc. and the purchasers party thereto.

   

APPENDIX D:

Pineapple Holdings, Inc. 2021 Equity Incentive Plan.

   

APPENDIX E:

Articles of Incorporation of Communications Systems, Inc. as amended

   

APPENDIX F:

Communications Systems, Inc. Unaudited Pro Forma Condensed Combined Financial Information

 

 

v 

 

 

ABOUT THIS PROXY STATEMENT/PROSPECTUS

 

This document, which forms part of a registration statement on Form S-4 filed with the SEC, by CSI (File No. 333-          ) (the “Registration Statement”), constitutes a prospectus of CSI under Section 5 of the Securities Act with respect to the shares of CSI common stock to be issued if the merger described herein is consummated. This document also constitutes a notice of meeting and a proxy statement/prospectus under Section 14(a) of the Exchange Act with respect to the special meeting of CSI shareholders at which CSI shareholders will be asked to consider and vote upon a proposal to approve the merger transactions by the approval of the merger agreement, among other matters.

 

CERTAIN DEFINED TERMS

 

In this proxy statement/prospectus:

 

“Base Consideration” means the 15.6 million shares of CSI’s common stock, subject to certain adjustments as described in the merger agreement, that CSI will issue as consideration for the merger to members of Pineapple at the effective time of the merger.

 

“Convertible Note Financing” means the financing that may be entered into by Pineapple prior to the closing of the merger for the issuance and sale of up to $10 million in gross proceeds of convertible notes that will convert, immediately prior to the merger, into Pineapple Class C Units at a rate of one Pineapple Class C Unit for every $2.00 of unpaid principal and accrued interest thereon. To the extent Pineapple sells any such convertible notes, the Class C Units outstanding will be exchanged at the effective time of the merger into shares of CSI common stock at a ratio of one share of CSI common stock for each Pineapple Class C Unit.

 

“combined company” means CSI following the consummation of the merger, which will be renamed Pineapple Holdings Inc.

 

“CSI,” “Communications Systems,” the “Company,” “we,” “us,” or “our” refer to Communications Systems, Inc., a Minnesota corporation.

 

“CVR” means contingent value rights, governed by the CVR agreement, to be issued and distributed by CSI to CSI shareholders of record as of the close of the business day immediately preceding the closing of the merger.

 

“CVR agreement” means the Contingent Value Rights Agreement by and among Communications Systems, Inc., the Rights Agent and the CVR Holders’ Representative, a form of which is attached as Appendix A-2.

 

“E-Gear” means E-Gear, LLC, a Hawaii limited liability company.

 

“E&S Sale Transaction” means the sale by Communications Systems to Lantronix, Inc. on August 2, 2021 of all of the issued and outstanding stock of CSI’s wholly owned subsidiary, Transition Networks, Inc., and the entire issued share capital of CSI’s wholly owned subsidiary, Transition Networks Europe Limited.

 

“HEC” means Hawaii Energy Connection, LLC, a Hawaii limited liability company.

 

“Pre-Closing Acquisition” means Pineapple’s acquisition of substantially all of the assets of HEC and E-Gear and assumption of certain liabilities of HEC and E-Gear pursuant to that certain Asset Purchase Agreement, dated March 1, 2021 (the “Pre-Closing Acquisition Agreement”), by and among Pineapple, HEC, and E-Gear and Steven P. Godmere, as representative for the Sellers (as defined in the Pre-Closing Acquisition Agreement).

 

“merger agreement” refers to the Agreement and Plan of Merger dated as of March 1, 2021 by and among CSI, Helios Merger Co., a wholly owned subsidiary of CSI (“Merger Sub”), Pineapple, Lake Street Solar LLC, as the Pineapple Members’ Representative (the “Members’ Representative”), and Randall D. Sampson, as the CSI Shareholders’ Representative (the “Shareholders’ Representative”), a copy of which is attached as Appendix A-1.

 

“Pineapple” means Pineapple Energy LLC, a Delaware limited liability company.

1 

 

“Pineapple Merger Transaction” refers to the transactions pursuant to the merger agreement, including the merger pursuant to which Merger Sub will merge with and into Pineapple with Pineapple surviving the merger as a wholly owned subsidiary of CSI and CSI will issue shares of its common stock in connection with the merger to members of Pineapple, as well as CSI entering into the CVR agreement and distributing the CVRs.

 

“PIPE Offering” means the transactions contemplated by the amended and restated securities purchase agreement dated September 15, 2021 between Communications Systems and the PIPE Investors that are the purchasers party to the securities purchase agreement pursuant to which CSI has agreed to sell and the PIPE Investors have agreed to purchase $32.0 million in newly authorized CSI Series A convertible preferred stock convertible at a price of $3.40 per share into CSI common stock, with five-year warrants to purchase an additional $32.0 million of common shares at that same price.

 

2 

 

 

QUESTIONS AND ANSWERS

 

Q: Why am I receiving this proxy statement/prospectus?

 

A: You are receiving this proxy statement/prospectus because you have been identified as a shareholder of Communications Systems as of the record date, and you are entitled to vote at the special meeting. This document serves as a proxy statement of CSI used to solicit proxies for the special meeting of CSI shareholders and a prospectus of CSI used to issue shares of CSI common stock to members of Pineapple in connection with the merger.

 

Q: When and where will the special meeting be held?

 

A: The special meeting will be held on                ,             , 2021, at 10:00 a.m. Central Time (CT). The special meeting will be a virtual meeting of shareholders. You may attend the online meeting and vote your shares electronically during the special meeting via the internet by visiting: www.virtualshareholdermeeting.com/JCS2021SM2.

 

Q: How can I attend the virtual special meeting?

 

A: The special meeting will be online and a completely virtual meeting of shareholders due to the ongoing public health impact of the coronavirus (COVID-19) pandemic. This decision was made in light of the protocols that federal, state, and local governments have imposed or may impose in the near future and taking into account the health and safety of our shareholders, directors and members of management, as well as our desire to allow shareholders to participate in the special meeting wherever they may be located.

 

All shareholders are cordially invited to attend the special meeting. Whether or not you plan to attend the special meeting, please vote your shares by internet, telephone or signing and returning the enclosed proxy or other voting instruction form.

 

Please note that if you hold shares of CSI common stock through the CSI Employee Stock Purchase Plan (ESOP), your voting instructions for these shares must be received by 11:59 p.m. Eastern Time on             , 2021. You may not vote the CSI common stock allocated to you through the ESOP electronically during the special meeting.

 

To participate in the special meeting, you will need the 16-digit control number included on your proxy card or on the voting instructions that accompanied your proxy materials. Please have your 16-digit control number readily available and log on to the special meeting by visiting www.virtualshareholdermeeting.com/JCS2021SM2 and entering your 16-digit control number. If you are a participant in the CSI ESOP, you may attend the special meeting as a guest by visiting the same website and logging in as a guest. If you are attending as a guest, you will not need a control number. You may begin to log into the meeting platform beginning at 9:30 a.m. CT on             , 2021. The special meeting will begin promptly at 10:00 a.m. CT on               , 2021.

 

The internet address to attend and vote at the special meeting is
www.virtualshareholdermeeting.com/JCS2021SM2.

 

The virtual meeting platform is fully supported across browsers (Internet Explorer, Firefox, Chrome, and Safari) and devices (desktops, laptops, tablets, and cell phones) running the most updated version of applicable software and plugins. Participants should ensure that they have a strong internet connection wherever they intend to participate in the special meeting. Participants should also give themselves plenty of time to log in and ensure that they can hear streaming audio prior to the start of the special meeting. We recommend that you log in at least fifteen minutes before the special meeting.

 

Q: What matters will the shareholders vote on at the special meeting?

 

A: The shareholders will vote on the following nine proposals:

 

 

1

To approve the Pineapple Merger Proposal;

3 

 

 

2

To approve the Merger Issuance Proposal;

 

 

3

To approve the PIPE Issuance Proposal;

 

 

4

To approve the Authorized Share Amendment Proposal;

 

 

5

To approve the Article IX Amendment Proposal;

 

 

6

To approve the Reverse Stock Split Proposal;

 

 

7

To approve the 2021 Equity Incentive Plan Proposal;

 

 

8

To approve, on an advisory, non-binding basis, the Advisory Compensation Proposal; and

 

 

9

To approve the Adjournment Proposal.

 

Q: What is the Pineapple Merger Proposal?

 

A: The Pineapple Merger Proposal is a proposal to approve the Agreement and Plan of Merger dated as of March 1, 2021 (the “merger agreement”) by and among Communications Systems, Inc., Helios Merger Co., a wholly owned subsidiary of CSI (“Merger Sub”), Pineapple Energy LLC (“Pineapple”), Lake Street Solar LLC, as the Pineapple Members’ Representative (the “Members’ Representative”), and Randall D. Sampson, as the CSI Shareholders’ Representative (the “Shareholders’ Representative”) pursuant to which Merger Sub will merge with and into Pineapple with Pineapple surviving the merger as a wholly owned subsidiary of CSI.

 

As consideration for the merger, CSI will issue to the members of Pineapple as of the effective time of the merger the “Base Consideration,” which is 15.6 million shares of CSI’s common stock, subject to certain adjustments. The Base Consideration will be increased for any outstanding convertible notes issued by Pineapple in the Convertible Note Financing, which will convert into additional shares of CSI common stock at a rate of one additional share for every $2.00 in unpaid principal and accrued interest on outstanding convertible notes. The Base Consideration will be decreased for any outstanding indebtedness of Pineapple at the closing of the merger in excess of $22.5 million, which will reduce the base consideration at a rate one share for every $2.00 of excess indebtedness. In addition to the Base Consideration, certain members of Pineapple may receive “Earnout Consideration,” which is additional shares upon the occurrence of milestones specified in the merger agreement.

 

We refer to the Base Consideration, as adjusted pursuant to the merger agreement, and the Earnout Consideration collectively as the “Merger Consideration.”

 

We refer to the transactions contemplated by the merger agreement as the “Pineapple Merger Transaction.”

 

Q: What will happen if the Pineapple Merger Proposal is approved by our shareholders?

 

A: Under the terms of the merger agreement, if the Pineapple Merger Proposal is approved by our shareholders and the other closing conditions under the merger agreement have been satisfied or waived, Merger Sub will merge with and into Pineapple with Pineapple surviving the merger as a wholly owned subsidiary of CSI. The Merger Consideration to the former Pineapple members will consist of CSI common stock. As a result, the former members of Pineapple will become shareholders of CSI.

 

The shareholders of CSI as of the close of the business day immediately preceding the effective time will continue to be shareholders in the merged company and receive one contractual contingent value right, or CVR, for each share of CSI common stock then held by them that entitle the holder of the CVR to a portion of the proceeds of dispositions received after the effective time pursuant to the CVR agreement.

 

Q: What is the Merger Issuance Proposal?

 

A: The Merger Issuance Proposal is a proposal to approve the issuance by CSI of shares of its common stock under the merger agreement.

4 

 

Q: What is the PIPE Issuance Proposal?

 

A: The PIPE Issuance Proposal is a proposal to approve the issuance by CSI of shares of its common stock to the PIPE Investors in connection with the PIPE Offering. In the PIPE Offering, the PIPE Investors have agreed to purchase $32.0 million in newly authorized CSI Series A convertible preferred stock convertible at a price of $3.40 per share into CSI common stock, with five-year warrants to purchase an additional $32.0 million of common shares at that same price, pursuant to the terms of an amended and restated securities purchase agreement dated September 15, 2021.

 

Q: What is the Authorized Share Amendment Proposal?

 

A: The Authorized Share Amendment Proposal is a proposal to approve an amendment to CSI’s articles of incorporation to increase the authorized shares of common stock to 150 million.

 

Q; What is the Article IX Amendment Proposal?

 

A: The Article IX Amendment Proposal is a proposal to approve an amendment to the CSI articles of incorporation to eliminate Article IX relating to business combinations.

 

Q: What is the Reverse Stock Split Proposal?

 

A: The Reverse Stock Split Proposal is a proposal to approve a reverse stock split of the outstanding shares of CSI common stock, at a ratio within a range of 1-for-3 to 1-for-5, as determined by the CSI board of directors. Article IX of the CSI articles of incorporation requires shareholder approval of a reverse stock split. The Reverse Stock Split Proposal is being made in the event that our shareholders do not approve Proposal #5: Article IX Amendment Proposal to eliminate Article IX. The CSI board of directors may determine to effect the reverse stock split, if the Reverse Stock Split Proposal is approved by CSI shareholders, even if the merger is not consummated. The CSI board of directors also reserves the right to not effect the reverse stock split, even if the Reverse Stock Split Proposal is approved by CSI shareholders.

 

Q: What is the 2021 Equity Incentive Plan Proposal?

 

A: The 2021 Equity Incentive Plan Proposal is a proposal to approve the 2021 Equity Incentive Plan, a copy of which is attached to this proxy statement/prospectus as Appendix D.

 

Q: What is the Advisory Compensation Proposal?

 

A: The Advisory Compensation Proposal is a proposal to approve, on an advisory, non-binding basis, certain compensation that has, will or may be paid or become payable to the CSI named executive officers in connection with the Pineapple Merger Transaction.

 

The Advisory Compensation Proposal is advisory in nature and the outcome of the vote on the Advisory Compensation Proposal is not binding on CSI. Further, because we are contractually obligated to make the potential payments detailed in “Proposal #1: Pineapple Merger Proposal – Interests of Our Directors and Executive Officers in the Pineapple Merger Transaction – Golden Parachute Compensation,” such compensation may be paid, subject only to the conditions applicable thereto, regardless of the outcome of the vote on the Advisory Compensation Proposal.

 

Q: What is the Adjournment Proposal?

 

A: The Adjournment Proposal is a proposal to permit us to adjourn or postpone the special meeting for the purpose of soliciting additional proxies in the event that, at the special meeting, the affirmative votes in favor of the Pineapple Merger Proposal, the Merger Issuance Proposal, the PIPE Issuance Proposal, the Authorized Share Amendment Proposal or the Reverse Stock Split Proposal are less than the number of votes required to approve any such proposal.

 

If there are insufficient votes at the time of the special meeting to approve the Pineapple Merger Proposal, the Merger Issuance Proposal, the PIPE Issuance Proposal, the Authorized Share Amendment Proposal or the Reverse

5 

 

Stock Split Proposal, and the Adjournment Proposal is approved at the special meeting, we will be able to adjourn or postpone the special meeting for purposes of soliciting additional proxies to approve the Pineapple Merger Proposal or the other proposals. If you have previously submitted a proxy on the proposals discussed in this proxy statement/prospectus and wish to revoke it upon adjournment or postponement of the special meeting, you may do so.

 

Q: Am I entitled to appraisal or dissenters’ rights in connection with the Pineapple Merger Proposal or any other proposal?

 

A: Shareholders are not entitled to appraisal or dissenters’ rights under Minnesota law or under CSI’s articles of incorporation or bylaws in connection with the Pineapple Merger Proposal or any other proposal.

 

Q: Who is entitled to vote at the special meeting?

 

A: Holders of CSI common stock at the close of business on                , 2021, the record date for the special meeting established by the CSI board of directors, are entitled to receive notice of, and to vote their shares at, the special meeting and any related adjournments or postponements. As of the close of business on the record date, there were 9,720,627 shares of our common stock outstanding and entitled to vote. Holders of our common stock are entitled to one vote per share.

 

Q: What are the quorum requirements for the special meeting?

 

A: The presence at the special meeting of at least a majority of the issued and outstanding shares of CSI’s common stock entitled to vote at the special meeting is necessary to constitute a quorum for transacting business at the special meeting. A shareholder is counted as present at the special meeting if the shareholder attends the online special meeting or the shareholder has properly submitted a proxy by internet, telephone or signing and returning the enclosed proxy or other voting instruction form as described below under “Q: How do I vote?” A validly submitted proxy will result in your shares counting towards a quorum even if no voting instructions are provided.

 

Q: What vote is required to approve each of the proposals?

 

A: You may vote “FOR,” “AGAINST” or “ABSTAIN” on each proposal. The following table summarizes the vote required for each proposal, the effect on each proposal of a vote of “ABSTAIN”, and the effect on each proposal of failing to vote at the special meeting. For Proposals #1-#8, a quorum also must be present at the special meeting.

 

Proposal
Number

Proposal Description

Vote Required for Approval

Effect of
Vote of
ABSTAIN

Effect of
Failure to
Vote *

#1

Pineapple Merger Proposal

FOR votes from holders of at least two-thirds of the issued and outstanding shares of CSI common stock

Same as AGAINST

Same as AGAINST

#2

Merger Issuance Proposal

FOR votes from holders of at least a majority of the shares of CSI common stock present and entitled to vote

Same as AGAINST

No effect

#3

PIPE Issuance Proposal

FOR votes from holders of at least a majority of the shares of CSI common stock present and entitled to vote

Same as AGAINST

No effect

#4

Authorized Share Amendment Proposal

FOR votes from holders of at least a majority of the issued and outstanding shares of CSI common stock

Same as AGAINST

Same as AGAINST

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Proposal
Number

Proposal Description

Vote Required for Approval

Effect of
Vote of
ABSTAIN

Effect of
Failure to
Vote *

#5

Article IX Amendment Proposal

FOR votes from holders of at least 80% of the issued and outstanding shares of CSI common stock

Same as AGAINST

Same as AGAINST

#6

Reverse Stock Split Proposal

FOR votes from holders of at least two-thirds of the issued and outstanding shares of CSI common stock

Same as AGAINST

Same as AGAINST

#7

2021 Equity Incentive Plan Proposal

FOR votes from holders of at least a majority of the shares of CSI common stock present and entitled to vote

Same as AGAINST

No effect

#8

Advisory Compensation Proposal

FOR votes from holders of at least a majority of the shares of CSI common stock present and entitled to vote

Same as AGAINST

No effect

#9

Adjournment Proposal

FOR votes from holders of at least a majority of the shares of CSI common stock present and entitled to vote

Same as AGAINST

No effect

 

* Other than shares allocated to participants in the CSI ESOP.

 

If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP, your shares will be voted at the special meeting according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on each proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on that proposal.

 

Q: How do I vote?

 

A: Whether or not you plan to attend the special meeting, you may vote your shares in advance of the special meeting by internet, telephone or signing and returning the enclosed proxy card. If you hold your shares in street name, then you received this proxy statement/prospectus from your broker, bank or nominee, along with a voting instruction card from your broker, bank or nominee. You will need to instruct your broker, bank or other nominee on how to vote your shares of common stock using the voting instructions provided.

 

Please note that if you hold shares of CSI common stock through the CSI Employee Stock Purchase Plan (ESOP), your voting instructions for these shares must be received by 11:59 p.m. Eastern Time on                        , 2021. You may not vote the CSI common stock allocated to you through the ESOP electronically during the special meeting.

 

Except with respect to shares allocated to you as a participant in the CSI ESOP, you may vote your shares electronically during the special meeting. You will need the 16-digit control number included on your proxy card or on the voting instructions that accompanied your proxy materials. Please have your 16-digit control number readily available and log on to the special meeting by visiting www.virtualshareholdermeeting.com/JCS2021SM2 and entering your 16-digit control number. You may begin to log into the meeting platform beginning at 9:30 a.m. CT on                        , 2021. The special meeting will begin promptly at 10:00 a.m. CT on                         , 2021.

 

Even if you plan to attend the special meeting, we strongly encourage you to submit a proxy for your shares in advance as described above, so your vote will be counted if you are not able to attend.

 

All shares represented by properly executed proxies received in time for the special meeting will be voted in the manner specified by the shareholders giving those proxies.

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Q: If I hold my shares in street name through my broker, will my broker vote these shares for me?

 

A: If you hold your shares in street name, you must provide your broker, bank or other nominee with instructions in order to vote those shares. To do so, you should follow the voting instructions provided to you by your bank, broker or other nominee. If your bank, broker or nominee holds your shares in its name and you do not instruct it how to vote, it will not have discretion to vote on any of the proposals at the special meeting and none of your street name shares will be voted at the special meeting. If you provide voting instructions to your broker, bank or other nominee, that entity will vote your shares as you instruct.

 

Q: Can I change my vote?

 

A: Yes. If you are a shareholder of record, you may change your vote or revoke your proxy at any time before the vote at the special meeting by:

 

 

delivering to us a written notice, bearing a date later than your proxy, stating that you revoke the proxy;

 

 

submitting a properly signed proxy card with a later date;

 

 

submitting a new vote by telephone or through the internet prior to the close of the voting facilities; or

 

 

for shares other than those allocated to CSI ESOP participants, attending the special meeting and voting at the online special meeting (although attendance at the special meeting will not, by itself, revoke a proxy).

 

If your shares are held in street name, you must contact your broker, bank or nominee to revoke your proxy or vote at the special meeting.

 

Q: What if I do not specify a voting choice for a proposal when returning a proxy?

 

A: Proxies or other voting instruction forms that are signed and returned without voting instructions will be voted in accordance with the recommendations of the CSI board of directors. The CSI board of directors unanimously recommends that shareholders vote FOR the Pineapple Merger Proposal and FOR each other proposal presented at the special meeting.

 

Q: What is the difference between a shareholder of record and a shareholder who holds stock in street name?

 

A: If your shares are registered in your name, that is, you have a Communications Systems stock certificate or hold your shares in an account with our transfer agent, Equiniti Trust Company, you are a shareholder of record. If your shares are held in an account with a broker, bank or another holder of record, these shares are considered to be held in street name.

 

Q: What does it mean if I get more than one proxy card?

 

A: If your shares are registered differently and are in more than one account, you may receive more than one proxy card. Please complete, sign, date, and return all of the proxy cards you receive regarding the special meeting to ensure that all of your shares are voted.

 

Q: How are proxies solicited and what is the cost?

 

A: CSI will bear all expenses incurred in connection with the solicitation of proxies and printing, filing and mailing this proxy statement/prospectus. We have engaged The Proxy Advisory Group, LLC (“PAG”) to assist in the solicitation of proxies and provide related advice and information support, for a services fee and the reimbursement of customary disbursements, which are not expected to exceed $40,000 in total. CSI will be solely responsible for the costs of the solicitation.

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Additionally, certain of CSI’s directors, officers and regular employees may solicit proxies personally or by telephone, letter, facsimile, or email. These directors, officers and employees will not be paid additional remuneration for their efforts but may be reimbursed for out-of-pocket expenses incurred in connection therewith. We will request brokers, custodians, nominees, and other record holders to forward copies of the proxy statement/prospectus and related soliciting materials to persons for whom they hold shares of our common stock and to request authority for the exercise of proxies. In such cases, upon the request of the record holders, we will reimburse such holders for their reasonable out-of-pocket expenses.

 

Q: What should I do if I have questions regarding the special meeting?

 

A: If you have any questions about how to cast your vote for the special meeting or would like copies of any of the documents referred to or incorporated by reference in this proxy statement/prospectus, you should call our Secretary at (952) 996-1674 or our proxy solicitor, The Proxy Advisory Group, LLC, 18 East 41st Street, Suite 2000, New York, New York 10017, at (212) 616-2181.

 

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SUMMARY OF THE PROXY STATEMENT/PROSPECTUS

 

This summary highlights selected information from this proxy statement/prospectus and does not contain all of the information that is important to you. To better understand the Pineapple Merger Proposal and the other proposals to be considered at the special meeting, you should read this proxy statement/prospectus in its entirety carefully, including the appendices. Each item in this summary includes a page reference directing you to a more complete description of that topic. Also see “WHERE YOU CAN FIND MORE INFORMATION” on page 222.

 

Information About the Parties to the Merger (page 61)

 

Communications Systems, Inc.

 

Communications Systems, Inc. is a Minnesota corporation that was organized in 1969. Until August 2, 2021, CSI classified its businesses into the following two segments:

 

 

Electronics & Software (E&S): designs, develops and sells Intelligent Edge solutions that provide connectivity and power through Power over Ethernet (“PoE”) products and actionable intelligence to end devices in an Internet of Things (“IoT”) ecosystem through embedded and cloud-based management software. In addition, this segment generates revenue from its traditional products consisting of media converters, NICs, and Ethernet switches that offer the ability to affordably integrate the benefits of fiber optics into any data network; and

 

 

Services & Support (S&S): provides SD-WAN and other technology solutions that address prevalent IT challenges, including network resiliency, security products and services, network virtualization, and cloud migrations, IT managed services, wired and wireless network design and implementation, and converged infrastructure configuration, deployment and management.

 

At the time the proposed merger was announced, CSI stated its intention to divest substantially all its current operating and non-operating assets, including its E&S Segment business, its S&S Segment business, real estate holdings, and cash, cash equivalents, and investments. Consistent with that announcement, CSI entered into a securities purchase agreement dated April 28, 2021 with Lantronix, Inc. pursuant to which CSI agreed to sell all of the issued and outstanding stock of its wholly owned subsidiary, Transition Networks, Inc., and the entire issued share capital of its wholly owned subsidiary, Transition Networks Europe Limited. These two subsidiaries operated the Transition Networks and Net2Edge Limited businesses that constitute the E&S Segment, and we refer to the sale of these subsidiaries as the “E&S Sale Transaction.” On August 2, 2021, CSI and Lantronix, Inc. closed the E&S Sale Transaction and, as a result, CSI disposed of its E&S Segment business as of that date.

 

Our mailing address is 10900 Red Circle Drive, Minnetonka, MN 55343, and the telephone number at that location is (952) 996-1674. Our principal website is www.commsystems.com.

 

Helios Merger Co.

 

Helios Merger Co., also referred to as “Merger Sub,” is a wholly-owned subsidiary of CSI. Merger Sub was formed as a Delaware corporation on February 26, 2021. Merger Sub was formed to consummate the merger. Following the consummation of the merger, Merger Sub will have merged with and into Pineapple, with Pineapple surviving the merger as a wholly owned subsidiary of CSI.

 

Pineapple Energy LLC

 

Pineapple Energy LLC is a Delaware limited liability company formed on December 1, 2020. Pineapple was founded to acquire and grow leading local and regional solar, storage, and energy services companies nationwide. Pineapple’s vision is to power the energy transition through grass-roots growth of solar electricity paired with battery storage on consumers’ homes. Pineapple puts the customer at the heart of everything it does, building long-term relationships to create and share in recurring revenue from the electric grid of the future. Pineapple’s cornerstone acquisitions of certain assets of Sungevity and Horizon Solar Power in December 2020 provide Pineapple with a well-known brand name and access to a database with both historical existing buyers and 115,000 unconverted Sungevity leads, dating back to January 2019.

 

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On March 1, 2021, Pineapple signed an asset purchase agreement to acquire two leading sustainable energy service and technology providers in Hawaii: Hawaii Energy Connection, LLC (“HEC”) and E-Gear, LLC (“E-Gear”). These acquisitions are anticipated to close immediately prior to the closing of the Pineapple Merger Transaction. HEC is a leading sustainable energy provider, with over 9,000 residential systems installed and growing. E-Gear operates as a technology developer and manufacturer of energy management software and hardware in Hawaii. The HEC and E-Gear acquisitions, also called the Pre-Closing Acquisition, are intended to establish Pineapple’s presence in the United States’ most solar-friendly region, as approximately 30% of Hawaiian homes are powered by solar.

 

The mailing address for Pineapple is 315 East Lake Street, Suite 301, Wayzata, Minnesota 55391 and the telephone number at that location is (952) 582-6460. The principal website for Pineapple is www.pineappleenergy.com.

 

Merger Agreement (page 125 and Appendix A-1)

 

On March 1, 2021, CSI and Merger Sub entered into a merger agreement with Pineapple, pursuant to which, subject to specified terms and conditions, including approval of the Pineapple Merger Transaction by our shareholders at the special meeting, Merger Sub will merge with and into Pineapple with Pineapple surviving the merger as a wholly owned subsidiary of CSI.

 

A copy of the merger agreement is attached as Appendix A-1 to this proxy statement/prospectus. We encourage you to read the merger agreement in its entirety.

 

Merger Consideration (page 126)

 

As consideration for the merger, CSI will issue to the members of Pineapple as of the effective time of the merger the “Base Consideration,” which is 15.6 million shares of CSI’s common stock, subject to certain adjustments. The Base Consideration will be increased for any outstanding convertible notes issued by Pineapple in the Convertible Note Financing, which will convert into additional shares of CSI common stock at a rate of one additional share for every $2.00 in unpaid principal and accrued interest on outstanding convertible notes. The Base Consideration will be decreased for any outstanding indebtedness of Pineapple at the closing of the merger in excess of $22.5 million, which will reduce the base consideration at a rate one share for every $2.00 of excess indebtedness. In addition to the Base Consideration, certain members of Pineapple may receive Earnout Consideration, which are additional shares of CSI common stock that will be issued upon the occurrence of milestones specified in the merger agreement.

 

Reasons for the Pineapple Merger Transaction (page 70)

 

After taking into account all of the material factors relating to the merger agreement and the Pineapple Merger Transaction, the CSI board of directors concluded that the benefits of the merger agreement and the Pineapple Merger Transaction outweigh the risks, and that the merger agreement and the Pineapple Merger Transaction are advisable and in the best interests of our company and our shareholders. The CSI board of directors did not assign relative weights to the material factors it considered. In addition, the CSI board of directors did not reach any specific conclusion on each of the material factors considered, but conducted an overall analysis of all of the material factors. Individual members of the CSI board of directors may have given different weights to different factors.

 

After careful consideration, the CSI board of directors unanimously recommends that you vote “FOR” the Merger Proposal.

 

Opinion of CSI’s Financial Advisor (page 74 and Appendix B)

 

CSI has engaged Craig-Hallum Capital Group LLC, referred to as “Craig-Hallum,” as financial advisor to CSI in connection with the proposed Pineapple Merger Transaction. In connection with this engagement, Craig-Hallum rendered its opinion to the CSI board of directors that, as of March 1, 2021, and based upon and subject to the factors and assumptions set forth therein, the Merger Consideration to be paid by CSI pursuant to the terms of the merger agreement is fair from a financial point of view to CSI. The full text of Craig-Hallum’s written opinion, dated March 1, 2021, which describes the assumptions made, procedures followed, matters considered, limitations on the review undertaken and qualifications, is attached as Appendix B to this proxy statement/prospectus and is

11

 

incorporated herein by reference. The description of Craig-Hallum’s opinion set forth herein is qualified in its entirety by reference to the full text of Craig-Hallum’s opinion. Craig-Hallum’s opinion was directed to the CSI board of directors (in its capacity as such) in connection with its evaluation of the Merger Consideration from a financial point of view to CSI and did not address any other terms, aspects or implications of the Pineapple Merger Transaction. Craig-Hallum was not requested to opine as to, and its opinion did not address, the basic business decision of CSI to proceed with or effect the Pineapple Merger Transaction. Craig-Hallum expressed no opinion or view as to the relative merits of the Pineapple Merger Transaction as compared to any alternative business strategies or transactions that might exist for CSI or the effect of any other transaction in which CSI might engage. Craig-Hallum’s opinion was dated as of March 1, 2021 and has not been updated subsequent to such date. Craig-Hallum’s opinion is not intended to be and does not constitute a recommendation to the CSI board of directors or to any shareholder as to how to act or vote with respect to the Pineapple Merger Transaction or any other matter.

 

Voting Agreement (page 142 and Appendix A-3)

 

Simultaneously with the execution of the merger agreement, Pineapple entered into the voting agreement with CSI and certain officers and directors of CSI (the “CSI Holders”): Mark D. Fandrich, Anita Kumar, Roger H.D. Lacey, Richard A. Primuth, Randall D. Sampson, Steven C. Webster and Michael R. Zapata.

 

The voting agreement expressly does not limit or restrict any CSI Holder from taking any action in his or her capacity as director or officer of CSI.

 

Pursuant to the voting agreement, each CSI Holder has agreed, with respect to all voting securities of CSI that such CSI Holder beneficially owns as of the date thereof or thereafter, to appear at the special meeting and vote in favor of the Pineapple Merger Proposal and the Merger Issuance Proposal and vote against any other shareholder action, agreement or transaction that is intended to or might adversely affect the consummation of the merger and related transactions, including any other acquisition proposal.

 

Additionally, each CSI Holder has agreed, among other things, not to transfer any of the CSI Holder’s covered securities and not to violate as shareholders any of the non-solicitation provisions of the merger agreement applicable to CSI representatives.

 

CVR Agreement (page 143 and Appendix A-2)

 

The merger agreement contemplates that, at or immediately prior to the closing of the merger, CSI, an agent to be determined (the “Rights Agent”) and a representative to be determined (the “CVR Holders’ Representative”) will enter into the CVR agreement that will govern the rights of holders of the CVRs. The rights and obligations of the CVR agreement will become the rights and obligations of the combined company after the closing of the merger.

 

Under the CVR agreement, holders of the CVRs will be entitled to receive a portion of the proceeds of any divestiture, assignment or other disposition of all assets of CSI and/or its subsidiaries that are related to CSI’s pre-merger business, assets and properties that occur during the 18 month period following the closing of the merger.

 

With respect to any disposition of all or any part of CSI’s legacy assets that is consummated during the 18-month CVR term, for which a definitive agreement is entered into prior to the closing of the merger, each CVR will entitle its holder to receive a pro rata portion of 100% of the net proceeds, if any, from each respective item of gross proceeds received by CSI or any of its affiliates regardless of when any such gross proceeds are actually received. With respect to any disposition for which a definitive agreement is entered into following the closing of the merger, each CVR will entitle its holder to receive a pro rata portion of 90% of the net proceeds, if any, in respect of each respective item of gross proceeds received by CSI or any of its affiliates as a result of such disposition regardless of when any such gross proceeds are actually received.

 

All CVR payments will be reduced by a reasonable amount to be determined by CSI to be held in a reserve fund, subject to specified maximums, which will be retained in a segregated escrow account in which all net proceeds of dispositions and the reserve fund amounts, if any, will be held until disbursed pursuant to the CVR agreement.

12

 

The CVRs will terminate upon the earlier of (a) the payment of the full amount of all CVR payment amounts to the Rights Agent and the payment of the full amount of all CVR payment amounts to the CVR holders and (b) the expiration of the 18-month CVR term. However, the CVR agreement will remain in effect to the extent of amounts earned prior to the expiration of the CVR agreement or held in the CVR escrow or reserve fund, and the applicable CVR agreement provisions will survive until such CVR payments have been made, if applicable.

 

The CVRs will not be transferable by the CVR holders, except in certain limited circumstances; will not have any voting or dividend rights; will not be certificated or evidenced by any instrument; will not accrue interest; and will not be registered with the SEC or listed for trading on any exchange. It is intended that the CVRs will not constitute securities, or a class of securities, for the purposes of any securities laws. The CVRs will not represent any equity or ownership interest in CSI (or in any constituent company to the merger) or in any legacy assets of CSI or other asset.

 

During the CVR term, the CVR Holders’ Representative and CSI will cooperate to use commercially reasonable efforts to pursue dispositions and monetization of CSI’s legacy assets. The CVR Holders’ Representative will have the final discretion and decision-making authority, not to be unreasonably withheld, over the final terms of each disposition and monetization of CSI’s legacy assets, subject to certain limitations.

 

PIPE Offering (page 150 and Appendix C)

 

On September 15, 2021, CSI entered into an amended and restated securities purchase agreement with the PIPE Investors to make a $32.0 million private placement investment referred to as the PIPE Offering. Under the terms of the securities purchase agreement, the PIPE Investors have agreed to purchase in the PIPE Offering $32.0 million in newly authorized CSI Series A convertible preferred stock convertible at a price of $3.40 per share into CSI common stock, with five-year warrants to purchase an additional $32.0 million of common shares at that same price. The closing of the PIPE Offering is subject to a number of conditions, including the consummation of the merger, filing of the Certificate of Designation with the Minnesota Secretary of State to designate the Series A convertible preferred stock, CSI shareholder approval as required by Nasdaq rules and regulations, CSI shareholder approval of an amendment to the CSI articles of incorporation to increase the authorized shares of common stock sufficient to complete the PIPE Offering, and the effectiveness of a registration statement to register for resale the CSI common stock issuable upon conversion of the Series A convertible preferred stock or issuable upon exercise of the warrants, as well as other customary closing conditions.

 

The PIPE Offering is expected to close immediately following the consummation of the merger. Thus, the PIPE Investors will invest in the combined company and will not be entitled to any cash dividends prior to the effective time nor the CVRs issued to CSI shareholders as of the close of the business day immediately preceding the effective time.

 

Special Meeting (page 53)

 

Date, Time and Place. The special meeting will be held on              ,               , 2021 at 10:00 a.m. Central Time (CT). The special meeting will be a virtual meeting of shareholders.

 

Except with respect to shares allocated to you as a participant in the CSI ESOP, you may attend the online meeting and vote your shares electronically during the special meeting via the internet by visiting: www.virtualshareholdermeeting.com/JCS2021SM2. You will need the 16-digit control number that is printed in the box marked by the arrow on your proxy card or on the voting instructions that accompanied your proxy materials. We recommend that you log in at least fifteen minutes before the start of the special meeting to ensure that you are logged in when the special meeting starts.

 

Record Date and Voting Power. You are entitled to vote at the special meeting if you owned shares of our common stock at the close of business on            , 2021, the record date for the special meeting. You will have one vote at the special meeting for each share of our common stock you held at the close of business on the record date. There are 9,720,627 shares of our common stock entitled to be voted at the special meeting.

 

Required Vote. You may vote “FOR,” “AGAINST” or “ABSTAIN” on each proposal. The following table summarizes the vote required for each proposal, the effect on each proposal of a vote of “ABSTAIN”, and the effect

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on each proposal of failing to vote at the special meeting. For Proposals #1-#8, a quorum also must be present at the special meeting.

 

Proposal
Number

Proposal Description

Vote Required for Approval

Effect of
Vote of
ABSTAIN

Effect of
Failure to
Vote *

#1

Pineapple Merger Proposal

FOR votes from holders of at least two-thirds of the issued and outstanding shares of CSI common stock

Same as AGAINST

Same as AGAINST

#2

Merger Issuance Proposal

FOR votes from holders of at least a majority of the shares of CSI common stock present and entitled to vote

Same as AGAINST

No effect

#3

PIPE Issuance Proposal

FOR votes from holders of at least a majority of the shares of CSI common stock present and entitled to vote

Same as AGAINST

No effect

#4

Authorized Share Amendment Proposal

FOR votes from holders of at least a majority of the issued and outstanding shares of CSI common stock

Same as AGAINST

Same as AGAINST

#5

Article IX Amendment Proposal

FOR votes from holders of at least 80% of the issued and outstanding shares of CSI common stock

Same as AGAINST

Same as AGAINST

#6

Reverse Stock Split Proposal

FOR votes from holders of at least two-thirds of the issued and outstanding shares of CSI common stock

Same as AGAINST

Same as AGAINST

#7

2021 Equity Incentive Plan Proposal

FOR votes from holders of at least a majority of the shares of CSI common stock present and entitled to vote

Same as AGAINST

No effect

#8

Advisory Compensation Proposal

FOR votes from holders of at least a majority of the shares of CSI common stock present and entitled to vote

Same as AGAINST

No effect

#9

Adjournment Proposal

FOR votes from holders of at least a majority of the shares of CSI common stock present and entitled to vote

Same as AGAINST

No effect

 

* Other than shares allocated to participants in the CSI ESOP.

 

If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP, your shares will be voted at the special meeting according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on each proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on that proposal.

 

Voting. Prior to the start of the special meeting, you may vote your shares of CSI common stock by internet, telephone or signing and returning the enclosed proxy or other voting instruction form. During the special meeting, you may vote by internet (except with respect to shares allocated to you as a participant in the CSI ESOP) if you are logged into www.virtualshareholdermeeting.com/JCS2021SM2 with the 16-digit control number that is printed in the box marked by the arrow on your proxy card or on the voting instructions that accompanied your proxy materials.

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Please note that if you hold shares of CSI common stock through the CSI Employee Stock Purchase Plan (ESOP), your voting instructions for these shares must be received by 11:59 p.m. Eastern Time on               , 2021. You may not vote the CSI common stock allocated to you through the ESOP electronically during the special meeting.

 

Whether you are a record holder or street name holder, if you vote your shares, your shares will be voted as you have directed. If you just execute and submit your proxy or voting instruction form without providing voting instructions, your shares will be voted FOR each of the proposals.

 

If you are a participant in the CSI ESOP, the CSI common stock allocated to you on the record date, plus all shares of common stock held by you as a record holder, will appear together on a single proxy voting form. If you do not return an executed proxy or vote online at the special meeting on any proposals, the CSI common stock allocated to you in the CSI ESOP on the record date will be voted according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on each proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on such proposal. If you do not return an executed proxy or vote online at the special meeting, the CSI common stock you otherwise hold of record will not be voted at the special meeting.

 

Quorum. The presence at the special meeting of at least a majority of the issued and outstanding shares of CSI’s common stock entitled to vote at the special meeting is necessary to constitute a quorum for transacting business at the special meeting. A shareholder is counted as present at the special meeting if the shareholder attends the online special meeting or the shareholder has properly submitted a proxy by internet, telephone or signing and returning the enclosed proxy or other voting instruction form.

 

Proxy Solicitation. We have engaged The Proxy Advisory Group, LLC (“PAG”) to assist in the solicitation of proxies and provide related advice and information support, for a services fee and the reimbursement of customary disbursements, which are not expected to exceed $40,000 in total. CSI will be solely responsible for the costs of the solicitation. Additionally, certain of CSI’s directors, officers and regular employees may solicit proxies personally or by telephone, letter, facsimile, or email. These directors, officers and employees will not be paid additional remuneration for their efforts but may be reimbursed for out-of-pocket expenses incurred in connection therewith. We will request brokers, custodians, nominees, and other record holders to forward copies of the proxy statement/prospectus and related soliciting materials to persons for whom they hold shares of our common stock and to request authority for the exercise of proxies. In such cases, upon the request of the record holders, we will reimburse such holders for their reasonable out-of-pocket expenses.

 

Interests of Certain Persons in the Pineapple Merger Transaction (page 90)

 

In considering the recommendation of the CSI board of directors that you vote for the Pineapple Merger Proposal, you should be aware that certain of our directors and executive officers may have interests in the Pineapple Merger Proposal that are different from, or in addition to, your interests as a shareholder.

 

Members of the CSI board of directors were aware of and considered these interests, among other matters, in evaluating and negotiating the Pineapple Merger Transaction, and in recommending to our shareholders that the Pineapple Merger Proposal be approved. For more information, see the sections entitled “Proposal #1: Pineapple Merger Proposal—Background of the Pineapple Merger Transaction” and “Proposal #1: Pineapple Merger Proposal —Reasons for the Pineapple Merger Transaction and Recommendation of Our Board of Directors.”

 

Conditions to Closing of the Merger (page 131)

 

The obligation of each party to complete the Pineapple Merger Transaction is subject to the satisfaction or, to the extent permissible under applicable law or pursuant to the merger agreement, waiver of certain conditions on or prior to the closing. Such conditions include, among others and in addition to customary closing conditions:

 

 

approval of the Pineapple members of the merger agreement and the transactions contemplated thereby, including the merger;

15

 

 

approval by the CSI shareholders of the merger agreement and the transactions contemplated thereby, including the merger, the CVR agreement and the issuance by CSI of CSI common stock in the merger, and approval by the CSI shareholders of an amendment to the CSI articles of incorporation to increase the authorized shares of common stock to a number of shares at least necessary to complete Pineapple Merger Transaction;

 

 

the Form S-4 registration statement (of which this proxy statement/prospectus is a part) will have become effective, no stop order suspending the effectiveness has been issued, and no proceeding for a stop order has been initiated or threatened in writing by the SEC or its staff;

 

 

no law or governmental order has been enacted or entered that makes illegal, enjoins, or otherwise prohibits consummation of the Pineapple Merger Transaction (including the merger and the issuance by CSI of CSI common stock as Merger Consideration) or the disposition by CSI of its assets and properties that are related to CSI’s pre-closing business; and

 

 

the amendment to the CSI articles of incorporation to increase the authorized shares of common stock to a number of shares at least necessary to complete Pineapple Merger Transaction has been filed, accepted and evidence of filing received by CSI from the Minnesota Secretary of State.

 

The obligation of CSI and Merger Sub to complete the Pineapple Merger Transaction is subject to the satisfaction or, to the extent permissible under applicable law or pursuant to the merger agreement, waiver of certain conditions on or prior to the closing. Such conditions include, among others and in addition to customary closing conditions:

 

 

the accuracy of the representations and warranties of Pineapple on the closing date of the merger as provided in the merger agreement;

 

 

Pineapple having performed in all material respects all of its obligations in the merger agreement required to be performed or by it on or before the closing of the merger;

 

 

CSI having received the CVR agreement in form and substance reasonably satisfactory to CSI, signed by the Rights Agent;

 

 

CSI having received an officer’s certificate duly executed by each of the chief executive officer and chief financial officer of Pineapple to the effect that certain conditions under the merger agreement have been satisfied;

 

 

Pineapple having consummated the Pre-Closing Acquisition;

 

 

the absence of a “Company Material Adverse Effect” as provided in the merger agreement.

 

The obligation of Pineapple to complete the Pineapple Merger Transaction is subject to the satisfaction or, to the extent permissible under applicable law or pursuant to the merger agreement, waiver of certain conditions on or prior to the closing. Such conditions include, among others and in addition to customary closing conditions:

 

 

the accuracy of the representations and warranties of CSI and Merger Sub on the closing date of the merger as provided in the merger agreement;

 

 

Pineapple having received an officer’s certificate duly executed by each of the chief executive officer and chief financial officer of CSI to the effect that certain conditions under the merger agreement have been satisfied;

 

 

CSI and Merger Sub having performed or complied with in all material respects all obligations under the merger agreement required by them on or before the closing of the merger; and

 

 

the absence of a “Parent Material Adverse Effect” as provided in the merger agreement.

16

 

Solicitation of Transactions (page 135)

 

Each of CSI and Pineapple agreed that, subject to certain exceptions, during the pre-closing period, CSI and Pineapple and any of their respective subsidiaries will not, and each party will cause their respective officers, members, employees, agents, attorneys, consultants, contractors, accountants, financial advisors and other authorized representatives, not to, directly or indirectly:

 

 

solicit, seek or initiate or knowingly take any action to facilitate or encourage any offers, inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any “acquisition proposal”, or engage, participate in, or knowingly facilitate, any discussions or negotiations regarding, or furnish any nonpublic information to any person in connection with any inquiries, proposals or offers that constitute or could reasonably be expected to lead to, an acquisition proposal;

 

 

solicit, initiate, encourage, enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any acquisition proposal, or furnish to any person any non-public information or afford any person other than the CSI or Pineapple, as applicable, access to such party’s property, books or records (except pursuant to a request by a governmental authority) in connection with any offers, inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any acquisition proposal;

 

 

take any action to make the provisions of any takeover statute inapplicable to any transactions contemplated by an acquisition proposal; or

 

 

resolve or publicly propose to do any of the foregoing.

 

Change of CSI Board Recommendation (page 136)

 

The CSI board of directors unanimously recommends that you vote FOR the Pineapple Merger Proposal and for each of the other proposals.

 

If at any time after the date of the merger agreement and prior to receipt of the required CSI shareholder approval, CSI receives an unsolicited, bona fide, written acquisition proposal that the CSI board of directors has determined in good faith, after consultation with outside legal counsel and its financial advisors, is or is reasonably expected to lead to a Superior Proposal, then the CSI board of directors may, prior to the time of the required CSI shareholder approval, change its recommendation for approval of the Pineapple Merger Proposal or may terminate the merger agreement in order to enter into a definitive agreement providing for the implementation of such Superior Proposal, in each case if at any time prior to the time, but not after, receipt of the required CSI shareholder approval is obtained, the CSI board of directors has determined in good faith, after consultation with outside legal counsel and its financial advisors, that the failure to make such recommendation change or the failure to terminate the merger agreement would be inconsistent with its fiduciary obligations under applicable law.

 

In the case of a Superior Proposal, the CSI board of directors will not be entitled to exercise its right to make a change in its recommendation unless we and our representatives have complied with the non-solicitation, notice and information, negotiation, and other provisions of the merger agreement. The CSI board of directors will not be entitled to terminate the merger agreement in order to enter into a definitive agreement providing for the implementation of such Superior Proposal unless concurrently with the termination, CSI pays the Parent Termination Fee of $2,500,000.

 

Termination (page 139)

 

Subject to certain exceptions, the merger agreement may be terminated prior to the closing in certain circumstances, including:

 

 

by mutual written consent of Pineapple and CSI;

 

 

by either CSI or Pineapple if the merger has not been consummated by the Outside Date of August 31, 2021;

17

 

 

by either CSI or Pineapple if a governmental authority issues a non-appealable final order having the effect of permanently prohibiting the merger;

 

 

by either CSI or Pineapple, if at the special meeting, any of the Pineapple Merger Proposal, the Merger Issuance Proposal and the Authorized Share Amendment Proposal are not approved;

 

 

by Pineapple, at any time prior to the receipt of CSI shareholder approval, if a CSI Board Recommendation Change has occurred or CSI will have materially breached its non-solicitation obligations under the merger agreement;

 

 

by each party upon certain material breaches of the representations, warranties, covenants or agreements on the part of the other party, subject to an opportunity to cure;

 

 

by CSI if, at any time prior to the receipt of the requisite CSI shareholder approval with respect to the issuance of shares of CSI common stock pursuant to the merger, CSI has received a Superior Proposal (as defined in the merger agreement), CSI will have complied in all material respects with its obligations under the merger agreement with respect to such Superior Proposal, and the CSI board of directors approves, and CSI concurrently with the termination of the merger agreement enters into, a definitive agreement with respect to such Superior Proposal; and

 

 

by CSI if there is a Material Adverse Effect (as defined in the Pre-Closing Acquisition Agreement) under the Pre-Closing Acquisition Agreement.

 

The termination of the merger agreement generally relieves the parties from their obligations, except that certain obligations will survive any termination including, among others, obligations relating to confidentiality and termination fees.

 

When the Pineapple Merger Transaction is Expected to be Completed (page 89)

 

We expect to complete the Pineapple Merger Transaction promptly after satisfaction or waiver of all of the closing conditions in the merger agreement, including approval of the Pineapple Merger Proposal by our shareholders. Subject to the satisfaction or waiver of these conditions, we expect the Pineapple Merger Transaction to close by               . However, there can be no assurance that the Pineapple Merger Transaction will be completed at all or, if completed, when it will be completed.

 

Effects on CSI if the Pineapple Merger Transaction is Completed (page 89)

 

If the Pineapple Merger Transaction is completed, CSI will commence doing business as Pineapple Energy, with a business model focused on the rapidly growing home solar industry, which is the current business of Pineapple. We expect to change our corporate name shortly following the merger to “Pineapple Holdings, Inc.”

 

The Pineapple Merger Transaction will not alter the rights, privileges or nature of the issued and outstanding shares of our common stock. A shareholder who owns shares of our common stock immediately prior to the closing of the Pineapple Merger Transaction will continue to hold the same number of shares immediately following the closing.

 

Immediately following the completion of the merger and the issuance of the Base Consideration to the Pineapple members as of immediately prior to the effective time of the merger, CSI shareholders are expected to hold approximately 38.4% of the outstanding shares of CSI common stock and former Pineapple members are expected to hold approximately 61.6% of the outstanding shares of CSI common stock.

 

If the Pineapple Merger Transaction is completed, we expect to nearly immediately thereafter close the PIPE Offering and issue the Series A convertible preferred stock and warrants to the PIPE Investors. It is expected that the Pre-Closing Acquisition, the merger and the PIPE Offering will close sequentially on the same date.

 

If the Pineapple Merger Transaction is completed, we expect the combined company to continue our efforts to divest substantially all our current operating and non-operating assets as part of our planned strategy to monetize these assets for the benefit of the CSI shareholders that will become holders of the CVRs as of the close of business on the business day prior to the consummation of the merger. There can be no assurance that the proposed merger with

18

 

Pineapple will be completed or completed within any specific timeframe. There also can be no assurance that any payments will be made to the CVR holders under the CVR agreement.

 

Our SEC reporting obligations as a public company will not be affected as a result of completing the Pineapple Merger Transaction.

 

Effects on CSI if the Pineapple Merger Transaction is Not Completed (page 90)

 

If the merger is terminated or not consummated for any reason, it is expected that the CSI board of directors will consider the full range of strategic alternatives regarding the use of its remaining cash and other assets, the S&S Segment business, and the future of CSI, with a view to maximizing value for our shareholders under the circumstances. These strategic alternatives may include pursuing an alternative transaction to the merger, retaining some or all of the cash or other assets, the acquisition of a new business or an investment in the S&S Segment business, adoption of a plan of liquidation, or a combination of these.

 

The merger agreement may be terminated under certain circumstances as set forth in the merger agreement and summarized in this proxy statement/prospectus. Pursuant to the merger agreement, we have agreed to pay Pineapple a termination fee of $2,500,000, plus applicable costs and expenses up to $750,000, if the merger agreement is terminated under certain circumstances.

 

Nasdaq Listing (page 92)

 

CSI common stock is currently listed on Nasdaq under the symbol “JCS.” CSI has agreed with Pineapple to reasonably cooperate in good faith to cause the shares of CSI common stock being issued in connection with the merger to be approved for listing on Nasdaq at or after the effective time of the merger. In order for shares of CSI common stock to continue to be listed on Nasdaq following the closing of the merger, CSI must file and Nasdaq must accept, an initial listing application pursuant to Nasdaq “business combination” rules. If this application is accepted, CSI anticipates that the shares of CSI common stock will be listed on Nasdaq following the closing of the merger under the trading symbol “PEGY.”

 

No Appraisal or Dissenters’ Rights (page 90)

 

No appraisal or dissenters’ rights are available to our shareholders under Minnesota law or CSI’s articles of incorporation or bylaws in connection with any proposal to be presented at the special meeting, including the Pineapple Merger Proposal.

 

Anticipated Accounting Treatment of the Merger (page 92)

 

We expect that the merger will be accounted for as a “reverse recapitalization” under generally accepted accounting principles in the United States of America. Under this method of accounting, CSI will be treated as the “acquired” company for financial reporting purposes and Pineapple will be treated as the “acquirer”. Accordingly, for accounting purposes, the merger will be treated as the equivalent of Pineapple issuing shares for the net assets of CSI, accompanied by a recapitalization. For further information, see “UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION” attached to this proxy statement/prospectus as Appendix F.

 

Certain Material U.S. Federal Income Tax Consequences of the Merger (page 93)

 

The merger is intended to qualify as a tax-free “reorganization” within the meaning of Section 368(a) of the Code. No ruling has been, or will be, sought by CSI or Pineapple from the IRS with respect to the merger and there can be no assurance that the IRS will not challenge the qualification of the merger as a “reorganization” under Section 368(a) of the Code or that a court would not sustain such a challenge. The parties are not obligated to cause the merger to so qualify and it is not a condition to the completion of the merger that the merger so qualifies or that either CSI or Pineapple receives an opinion of counsel to such effect.

 

Assuming the merger qualifies as a reorganization, Pineapple U.S. Holders generally will not recognize any gain or loss, for federal income tax purposes, with respect to the shares of CSI common stock they receive in the merger, except in respect of cash received by such Pineapple U.S. Holder in lieu of a fractional share of CSI common stock. Pineapple U.S. Holders are urged to read the discussion in the section entitled “ Certain Material U.S. Federal

19

 

Income Tax Consequences of the Merger” beginning on page 93 of this proxy statement/prospectus and to consult their tax advisors as to the U.S. federal income tax consequences of the merger, as well as the effects of other federal, state, local and non-U.S. tax law.

 

Certain Material U.S. Federal Income Tax Consequences of the CVRs and the Reverse Stock Split (pages 147 and 112)

 

In the opinion of Ballard Spahr, CSI’s legal counsel, based on the facts, assumptions, limitations and exclusions set forth in this proxy statement/prospectus, the issuance of the CVRs to CSI U.S. Holders under the terms expressed in the form of the CVR agreement attached as Appendix A-2 to this proxy statement/prospectus is more likely than not to be treated as a distribution of property with respect to CSI common stock. CSI U.S. Holders are urged to read the discussion in the section entitled “— Certain Material U.S. Federal Income Tax Consequences of the CVRs” beginning on page 147 of this proxy statement/prospectus and to consult their tax advisors as to the U.S. federal income tax consequences of receipt of the CVRs, as well as the effects of other federal, state, local and non-U.S. tax law.

 

A CSI U.S. Holder should not recognize gain or loss upon the CSI reverse stock split, except to the extent a CSI U.S. Holder receives cash in lieu of a fractional share of CSI common stock. CSI U.S. Holders are urged to read the discussion in the section entitled Proposal #6: Reverse Stock Split Proposal — Certain Material U.S. Federal Income Tax Consequences of the Reverse Stock Split” beginning on page 112 of this proxy statement/prospectus and to consult their tax advisors as to the U.S. federal income tax consequences of receipt of the CVRs, as well as the effects of other federal, state, local and non-U.S. tax law.

 

The tax consequences to you of the receipt of CVRs and the CSI reverse stock split will depend on your particular facts and circumstances. You should consult your tax advisors as to the specific tax consequences to you.

 

Risk Factors (page 28)

 

In evaluating the Pineapple Merger Proposal and the other proposals, in addition to the other information contained in this proxy statement/prospectus, you should carefully consider the special risks under “RISK FACTORS” beginning on page 28.

 

 

20 

 

 

SELECTED HISTORICAL AND UNAUDITED PRO FORMA
CONDENSED COMBINED FINANCIAL DATA

 

Selected Historical Financial Data of CSI

 

The following table sets forth selected historical statements of loss and comprehensive loss and balance sheet data of CSI for each of the periods presented. The selected financial data has been derived from CSI’s audited financial statements as of and for the years ended December 31, 2020 and 2019, and from CSI’s unaudited financial statements as of and for the six months ended June 30, 2021, each of which is included elsewhere in this proxy statement/prospectus.

 

The following table should be read together with “CSI MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS” beginning on page 171 of this proxy statement/prospectus and CSI’s consolidated audited financial statements as of and for the years ended December 31, 2020 and 2019 and related notes and CSI’s condensed consolidated unaudited financial statements as of and for the six months ended June 30, 2021 and related notes beginning on page F-1 of this proxy statement/prospectus.

 

CSI’s historical results are not necessarily indicative of results to be expected in any future period.

 

 

 

Year Ended December 31

 

 

Six Months Ended
June 30

 

 

 

2020

 

 

2019

 

 

2021

 

 

2020

 

Selected Income Statement Data (in thousands, except per share data)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sales

 

$

42,576

 

 

$

50,906

 

 

$

21,156

 

 

$

18,791

 

Cost of Sales

 

 

25,369

 

 

 

28,720

 

 

 

12,332

 

 

 

11,574

 

Gross Profit

 

 

17,207

 

 

 

22,186

 

 

 

8,824

 

 

 

7,217

 

Operating Expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Selling, general and administrative expenses

 

 

19,219

 

 

 

22,177

 

 

 

10,161

 

 

 

9,673

 

Transaction costs

 

 

685

 

 

 

-

 

 

 

2,471

 

 

 

415

 

Total Operating Expenses

 

 

19,904

 

 

 

22,177

 

 

 

12,632

 

 

 

10,088

 

Operating (loss) income from continuing operations

 

 

(2,697

)

 

 

9

 

 

 

(3,808

)

 

 

(2,871

)

Other income (expense), net

 

 

922

 

 

 

226

 

 

 

(292

)

 

 

690

 

Operating (loss) income from continuing operations before income tax

 

 

(1,775

)

 

 

235

 

 

 

(4,100

)

 

 

(2,181

)

Income tax expense (benefit)

 

 

20

 

 

 

(15

)

 

 

-

 

 

 

(5

)

Net (loss) income from continuing operations

 

 

(1,795

)

 

 

250

 

 

 

(4,100

)

 

 

(2,176

)

Net income from discontinued operations, net of tax

 

 

1,624

 

 

 

6,219

 

 

 

-

 

 

 

1,745

 

Net (loss) income

 

$

(171

)

 

$

6,469

 

 

$

(4,100

)

 

$

(431

)

Basic net (loss) income per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Continuing operations

 

$

(0.19

)

 

$

0.03

 

 

$

(0.44

)

 

$

(0.24

)

Discontinued operations

 

 

0.17

 

 

 

0.67

 

 

 

-

 

 

 

0.19

 

 

 

$

(0.02

)

 

$

0.70

 

 

$

(0.44

)

 

$

(0.05

)

Diluted net (loss) income per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Continuing operations

 

$

(0.19

)

 

$

0.03

 

 

$

(0.44

)

 

$

(0.24

)

Discontinued operations

 

 

0.17

 

 

 

0.66

 

 

 

-

 

 

 

0.19

 

 

 

$

(0.02

)

 

$

0.69

 

 

$

(0.44

)

 

$

(0.05

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Average Dilutive Shares Outstanding

 

 

9,323

 

 

 

9,337

 

 

 

9,398

 

 

 

9,308

 

 

 

 

As of December 31

 

 

As of June 30

 

 

 

2020

 

 

2019

 

 

2021

 

Selected Balance Sheet Data (in thousands)

 

 

 

 

 

 

 

 

 

 

 

 

Total assets

 

$

55,556

 

 

$

59,151

 

 

$

51,997

 

Cash, cash equivalents, and liquid investments

 

 

21,457

 

 

 

24,057

 

 

 

21,112

 

Property, plant and equipment, net

 

 

7,242

 

 

 

8,238

 

 

 

6,956

 

Long-term liabilities

 

 

624

 

 

 

408

 

 

 

570

 

Stockholders’ equity

 

 

47,495

 

 

 

47,392

 

 

 

43,889

 

 

 

21 

 

 

Selected Historical Financial Data of Pineapple

 

The following table sets forth selected historical statements of operations and balance sheet data of Pineapple for each of the periods presented. The selected financial data has been derived from Pineapple’s audited financial statements as of December 31, 2020 and for the period from inception (December 1, 2020) to December 31, 2020, and from Pineapple’s unaudited financial statements as of and for the six months ended June 30, 2021, each of which is included elsewhere in this proxy statement/prospectus.

 

The following table should be read together with “PINEAPPLE MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS” beginning on page 187 of this proxy statement/prospectus and Pineapple’s audited financial statements as of December 31, 2020 and for the period from inception (December 1, 2020) to December 31, 2020 and related notes and Pineapple’s condensed unaudited financial statements as of and for the six months ended June 30, 2021 and related notes beginning on page F-55 of this proxy statement/prospectus.

 

Pineapple’s historical results are not necessarily indicative of results to be expected in any future period.

 

 

 

Period from Inception (December 1, 2020) Through December 31

 

 

Six Months Ended
June 30

 

 

 

2020

 

 

2021

 

Selected Income Statement Data (in thousands)

 

 

 

 

 

 

 

 

Sales

 

$

-

 

 

$

-

 

Cost of Sales

 

 

-

 

 

 

-

 

Gross Profit

 

 

-

 

 

 

-

 

Operating Expenses:

 

 

 

 

 

 

 

 

General and administrative expenses

 

 

2,361

 

 

 

393

 

Amortization expense

 

 

78

 

 

 

715

 

Sales and marketing

 

 

-

 

 

 

63

 

Transaction costs

 

 

-

 

 

 

1,432

 

Total Operating Expenses

 

 

2,439

 

 

 

2,603

 

Operating loss

 

 

(2,439

)

 

 

(2,603

)

Other expense, net

 

 

(62

)

 

 

(729

)

Net loss

 

$

(2,501

)

 

$

(3,332

)

 

 

 

As of December 31

 

 

As of June 30

 

 

 

2020

 

 

2021

 

Selected Balance Sheet Data (in thousands)

 

 

 

 

 

 

 

 

Total assets

 

$

4,690

 

 

$

3,672

 

Cash and cash equivalents

 

 

-

 

 

 

177

 

Property, plant and equipment, net

 

 

-

 

 

 

-

 

Long-term liabilities

 

 

7,191

 

 

 

9,505

 

Members’ deficit

 

 

(2,501

)

 

 

(5,833

)

 

[remainder of page intentionally blank]

22 

 

Selected Historical Financial Data of HEC and E-Gear

 

The following table sets forth selected historical combined statements of operations and combined balance sheet data of HEC and E-Gear for each of the periods presented. The selected financial data has been derived from the HEC and the E-Gear combined audited financial statements as of and for the years ended December 31, 2020 and 2019, and from the HEC the E-Gear combined unaudited financial statements as of and for the six months ended June 30, 2021, each of which is included elsewhere in this proxy statement/prospectus.

 

The following table should be read together with “HEC AND E-GEAR MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS” beginning on page 193 of this proxy statement/prospectus and the HEC and E-Gear combined audited financial statements as of and for the years ended December 31, 2020 and 2019 and related notes and the HEC and E-Gear condensed combined unaudited financial statements as of and for the six months ended June 30, 2021 and related notes beginning on page F-77 of this proxy statement/prospectus.

 

The HEC and E-Gear combined historical results are not necessarily indicative of results to be expected in any future period.

 

 

 

Year Ended December 31

 

 

Six Months Ended
June 30

 

 

 

2020

 

 

2019

 

 

2021

 

 

2020

 

Selected Income Statement Data (in thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sales

 

$

18,957

 

 

$

19,220

 

 

$

6,468

 

 

$

8,588

 

Cost of Sales

 

 

13,102

 

 

 

12,647

 

 

 

4,885

 

 

 

6,182

 

Gross Profit

 

 

5,855

 

 

 

6,573

 

 

 

1,583

 

 

 

2,406

 

Operating Expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

General and administrative expenses

 

 

2,286

 

 

 

2,563

 

 

 

938

 

 

 

1,047

 

Taxes

 

 

855

 

 

 

851

 

 

 

291

 

 

 

388

 

Sales and marketing

 

 

1,283

 

 

 

1,224

 

 

 

463

 

 

 

653

 

Total Operating Expenses

 

 

4,424

 

 

 

4,638

 

 

 

1,692

 

 

 

2,088

 

Operating income (loss)

 

 

1,431

 

 

 

1,935

 

 

 

(109

)

 

 

318

 

Other income (expense), net

 

 

546

 

 

 

(44

)

 

 

6

 

 

 

186

 

Net income (loss)

 

$

1,977

 

 

$

1,891

 

 

$

(103

)

 

$

504

 

 

 

 

As of December 31

 

 

As of June 30

 

 

 

2020

 

 

2019

 

 

2021

 

Selected Balance Sheet Data (in thousands)

 

 

 

 

 

 

 

 

 

 

 

 

Total assets

 

$

5,180

 

 

$

6,698

 

 

$

3,435

 

Cash and cash equivalents

 

 

1,477

 

 

 

1,890

 

 

 

1,249

 

Property, plant and equipment, net

 

 

222

 

 

 

187

 

 

 

180

 

Long-term liabilities

 

 

-

 

 

 

975

 

 

 

-

 

Members’ equity

 

 

3,334

 

 

 

2,342

 

 

 

2,286

 

 

[remainder of page intentionally blank]

23 

 

Selected Unaudited Pro Forma Condensed Combined Financial Data of CSI and Pineapple

 

The following selected unaudited pro forma condensed combined financial data gives effect to the following, which are collectively referred to as the “Pro Forma Events”:

 

 

The closing of the E&S Sale Transaction;

 

 

The Pre-Closing Acquisition pursuant to Pre-Closing Acquisition Agreement;

 

 

The Pineapple Merger Transaction in accordance with the merger agreement; and

 

 

The closing of the PIPE Offering and the issuance, following the consummation of the merger, of newly authorized CSI Series A Convertible Preferred Stock and warrants to purchase shares of CSI common stock in the PIPE Offering and the receipt of $32 million in aggregate consideration.

 

The unaudited pro forma condensed combined financial information was prepared using the acquisition method of accounting under U.S. generally accepted accounting principles (“GAAP”). For accounting purposes, Pineapple is considered to be acquiring CSI and the merger is expected to be accounted for as an asset acquisition based upon a preponderance of factors as described in “UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION” attached to this proxy statement/prospectus as Appendix F.

 

The selected unaudited pro forma condensed combined balance sheet data as of June 30, 2021 combines the historical balance sheet data of CSI, Pineapple, HEC, and E-Gear as if the Pro Forma Events had been consummated on June 30, 2021. The selected unaudited pro forma condensed combined statement of operations data for the year ended December 31, 2020 and for the six months ended June 30, 2021 combines the historical statements of operations of CSI and Pineapple, HEC, and E-Gear for such periods on a pro forma basis as if the Pro Forma Events had been consummated on January 1, 2020 and January 1, 2021, respectively. The selected unaudited pro forma condensed combined financial data are presented on the basis of CSI’s fiscal year and combine the historical results of the fiscal periods of CSI, Pineapple, HEC, and E-Gear, and disposition of the E&S Segment in the E&S Sale Transaction.

 

The selected unaudited pro forma condensed combined financial data are not necessarily indicative of the combined financial position or results of operations of future periods or CSI’s consolidated statements of operations or consolidated balance sheet actually would have been had the Pro Forma Events been completed as of the dates indicated. The selected unaudited pro forma condensed combined financial data as of and for the year ended December 31, 2020 and for the six months ended June 30, 2021 are derived from the unaudited pro forma condensed combined financial information and should be read in conjunction with that information.

 

See “UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION” attached to this proxy statement/prospectus as Appendix F.

 

Unaudited Pro Forma Condensed Combined Balance Sheet Data

(in thousands)

 

 

 

As of June 30

 

 

 

2021

 

Total assets

 

$

121,959

 

Cash, cash equivalents, and liquid investments

 

 

56,475

 

Goodwill and other intangible assets

 

 

45,620

 

Property, plant and equipment, net

 

 

7,009

 

Long-term liabilities

 

 

11,235

 

Stockholders’ equity

 

 

52,154

 

 

 

24 

 

 

Unaudited Pro Forma Condensed Combined Income Statements Data

(in thousands, except per share data)

 

 

 

Year Ended

 

 

Six Months Ended

 

 

 

December 31

 

 

June 30

 

 

 

2020

 

 

2021

 

Sales

 

$

27,037

 

 

$

9,953

 

Cost of Sales

 

 

18,865

 

 

 

7,232

 

Gross Profit

 

 

8,172

 

 

 

2,721

 

Operating Expenses:

 

 

 

 

 

 

 

 

Selling, general and administrative expenses

 

 

15,052

 

 

 

8,406

 

Transaction costs

 

 

685

 

 

 

8,419

 

Total Operating Expenses

 

 

15,737

 

 

 

16,825

 

Operating loss from continuing operations

 

 

(7,565

)

 

 

(14,104

)

Other income (expense), net

 

 

1,416

 

 

 

(958

)

Operating (loss) income from continuing operations before income tax

 

 

(6,149

)

 

 

(15,062

)

Income tax expense (benefit)

 

 

20

 

 

 

1

 

Net (loss) income from continuing operations

 

$

(6,169

)

 

$

(15,063

)

Basic net loss per share

 

$

(0.22

)

 

$

(0.53

)

Diluted net (loss) income per share:

 

 

(0.22

)

 

 

(0.53

)

Average Dilutive Shares Outstanding

 

 

27,923

 

 

 

28,248

 

 

Comparative Historical and Unaudited Pro Forma Per Share Data

 

The information below reflects the historical net loss and book value per share of CSI common stock in comparison with the unaudited pro forma net loss and book value per share after giving effect to the Pro Forma Events. You should read the tables below in conjunction with the audited and unaudited consolidated financial statements of CSI, the audited and unaudited financial statements of Pineapple, and the audited and unaudited combined financial statements HEC and E-Gear, including in each case the related notes and the unaudited pro forma condensed combined financial information and the related notes, all of which are included in or attached to this proxy statement/prospectus.

 

 CSI Historical

 

 

 

Year Ended

 

 

Six Months Ended

 

 

 

December 31

 

 

June 30

 

 

 

2020

 

 

2021

 

  Historical Per Common Share Data:

 

 

 

 

 

 

Basic and diluted net loss per share from continuing operations

 

$

(0.19

)

 

$

(0.44

)

  Book value per share

 

 

5.09

 

 

 

4.63

 

 

Combined Company

 

 

 

Year Ended

 

 

Six Months Ended

 

 

 

December 31

 

 

June 30

 

 

 

2020

 

 

2021

 

  Pro Forma Per Common Share Data:

 

 

 

 

 

 

Basic and diluted net loss per share from continuing operations

 

$

(0.22

)

 

$

(0.53

)

  Book value per share

 

 

N/A

 

 

 

1.84

 

 

 

25 

 

 

MARKET PRICE AND DIVIDEND INFORMATION

 

CSI Common Stock

 

The common stock of Communications Systems is listed on the Nasdaq Global Market under the symbol “JCS.” The following table presents, for the periods indicated, the range of high and low per share sales prices for CSI common stock as reported on the Nasdaq Global Market for each of the periods set forth below.

 

 

 

High

 

 

Low

 

Year Ending December 31, 2021

 

 

 

 

 

 

 

 

First Quarter

 

$

11.45

 

 

$

4.30

 

Second Quarter

 

$

7.35

 

 

$

5.68

 

Third Quarter

 

$

10.59

 

 

$

6.55

 

Fourth Quarter (through             , 2021)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Year Ended December 31, 2020

 

 

 

 

 

 

 

 

First quarter

 

$

6.82

 

 

$

3.50

 

Second quarter

 

$

5.98

 

 

$

3.76

 

Third quarter

 

$

5.30

 

 

$

3.73

 

Fourth quarter

 

$

4.73

 

 

$

3.70

 

 

 

 

 

 

 

 

 

 

Year Ended December 31, 2019

 

 

 

 

 

 

 

 

First quarter

 

$

3.05

 

 

$

2.03

 

Second quarter

 

$

3.16

 

 

$

2.50

 

Third quarter

 

$

5.20

 

 

$

2.83

 

Fourth quarter

 

$

9.90

 

 

$

4.10

 

 

On March 1, 2021, the last full trading day immediately preceding the public announcement of the merger, the closing price per share of CSI common stock on the Nasdaq Global Market was $5.35. On            , 2021, the last reported sale price of CSI common stock on the Nasdaq Global Market was $           , per share.

 

Because the market price of CSI common stock is subject to fluctuation, the market value of the shares of CSI common stock that Pineapple members will be entitled to receive in the merger may increase or decrease.

 

Assuming successful application for initial listing with Nasdaq, following the closing of the merger, CSI expects the combined company’s common stock will continue to be listed on Nasdaq. CSI will change its corporate name shortly following the merger to “Pineapple Holdings, Inc.” and the combined company common stock will trade under the symbol “PEGY.”

26 

 

As of                , 2021, there were 481 shareholders of record of CSI common stock. The number of record holders was determined from the records of CSI’s transfer agent and does not include beneficial owners of CSI’s common stock whose shares are held in the names of various security brokers, dealers, and registered clearing agencies. The transfer agent of the CSI common stock is Equiniti Trust Company, 1110 Centre Pointe Curve, Suite 100, Mendota Heights, MN 55120-4100, which may be reached by telephone at 1-800-468-9716.

 

CSI Dividends and Combined Company Dividend Policy

 

In 2019, CSI declared and paid a quarterly cash dividend of $0.02 per share of common stock. In 2020, CSI paid a cash dividend of $0.02 per share of common stock for the first two quarters and then suspended the quarterly dividend.

 

On April 28, 2021, CSI entered into a securities purchase agreement with Lantronix, Inc. pursuant to which CSI agreed to sell all of the issued and outstanding stock of its wholly owned subsidiary, Transition Networks, Inc., and the entire issued share capital of its wholly owned subsidiary, Transition Networks Europe Limited. These two subsidiaries operated the Transition Networks and Net2Edge Limited businesses that constitute the CSI Electronics & Software (“E&S”) Segment, and we refer to the sale of these subsidiaries as the “E&S Sale Transaction.” On August 2, 2021, CSI and Lantronix, Inc. closed the E&S Sale Transaction and, as a result, CSI disposed of its E&S Segment business as of that date.

 

On September 13, 2021, CSI declared a cash dividend of $3.50 per share or approximately $34.0 million from the net proceeds from the E&S Sale Transaction and other available cash resources. The dividend was payable on October 15, 2021 to holders of record of CSI common stock as of September 30, 2021. If, after the closing of the merger, CSI receives cash from Lantronix from the E&S Sale Transaction earnout, the net proceeds of that earnout payment will be delivered to CSI shareholders through the contingent value rights (CVRs) to be issued in connection with the merger.

 

Pursuant to the merger agreement, at the closing of the merger, CSI will enter into the CVR agreement with the holders’ representative and the rights agent. Pursuant to the CVR agreement, each shareholder of CSI as of immediately prior to the closing of the merger will receive one non-transferable CVR for each outstanding share of common stock of CSI held as of the close of business on the day immediately before the effective time of the merger. The CVR will represent the right to receive pro-rata distributions that occur following the effective time of the merger from dispositions of CSI’s pre-merger assets. See “AGREEMENTS RELATING TO THE MERGER – Contingent Value Rights Agreement” on page 143 of this proxy statement/prospectus.

 

Following the consummation of the merger, the combined company intends to retain future earnings, if any, for use in its business, and, therefore, it does not anticipate declaring or paying any dividends in the foreseeable future. Payments of future dividends, if any, will be at the discretion of the combined company’s board of directors after considering various factors, including its financial condition, operating results, current and anticipated cash needs and plans for expansion of the Pineapple Energy business.

 

Pineapple Units

 

Pineapple is a private company and its membership interests, quantified as units, are not publicly traded. Since inception, Pineapple has not declared or made any dividends or distributions to its members.

 

27 

 

 

RISK FACTORS

 

You should carefully consider the special risks described below relating to the Pineapple Merger Transaction, the PIPE Offering, the combined company, and those risk factors generally associated with our business contained in our Annual Report on Form 10-K for the fiscal year ended December 31, 2020 and our subsequent SEC filings, along with other information provided to you in this proxy statement/prospectus, in deciding how to vote on the Pineapple Merger Proposal and each of the other proposals. See “WHERE YOU CAN FIND ADDITIONAL INFORMATION” on page 222 of this proxy statement/prospectus.

 

The special risks described below are not the only ones facing CSI and, if the merger is consummated, the combined company. Additional risks not presently known to us or that we currently believe are immaterial may also impair our business operations. If any of the following special risks actually occurs, the business, financial condition or results of operations of CSI or the combined company could be materially adversely affected, the market price of CSI’s common stock may decline, and you may lose all or part of your investment.

 

Risks Related to the Proposed Merger and Other Transactions

 

The Pineapple Merger Transaction may not be completed even if the CSI shareholders approve the Pineapple Merger Proposal, including because the merger and the Pre-Closing Acquisition were not completed by August 31, 2021.

 

The obligations of both CSI and Pineapple to close the Pineapple Merger Transaction is subject to a number of conditions, including approval by our shareholders, as well as other closing conditions set forth in the merger agreement. We cannot control some of these conditions and we cannot ensure that they will be satisfied or that either party will waive any condition of the other party that are not satisfied.

 

There can be no certainty, nor can we provide any assurance to shareholders, that, even if the shareholders approve the Pineapple Merger Proposal, these conditions will be satisfied or, if satisfied, when they will be satisfied. Because the merger was not completed by August 31, 2021, either CSI or Pineapple have the right to terminate the merger agreement, except that the right to terminate the merger agreement is not available to any party whose failure to fulfill any obligation under the merger agreement has been a principal cause of or resulted in the failure of the merger to occur on or before August 31, 2021. As of the date of this proxy statement/prospectus, neither CSI nor Pineapple has notified the other that it is exercising any right it may have to terminate the merger agreement.

 

Additionally, it is a condition to CSI’s obligation to consummate the merger with Pineapple that Pineapple has consummated the Pre-Closing Acquisition. We cannot provide you assurance that Pineapple, HEC and E-Gear will satisfy all of their respective obligations under the Pre-Closing Acquisition Agreement or that any party will satisfy the closing conditions of the Pre-Closing Acquisition Agreement. We do not control the closing conditions set forth in the Pre-Closing Acquisition Agreement. Under the Pre-Closing Acquisition Agreement, either Pineapple or Steven P. Godmere, as representative for the HEC and E-Gear as sellers, may terminate the Pre-Closing Acquisition Agreement because the closing date did not occur on or before August 31, 2021 except that any party terminating the Pre-Closing Acquisition Agreement (or, in the event of a proposed termination by seller representative, any seller) may not be in material breach of any representation, warranty, covenant or other agreement contained in the Pre-Closing Acquisition Agreement at the time of such termination. As of the date of this proxy statement/prospectus, neither Pineapple nor Mr. Godmere has notified the other that it is exercising any right it may have to terminate the Pre-Closing Acquisition Agreement. If the Pre-Closing Acquisition Agreement is terminated for any reason, the Pineapple Merger Transaction will not be completed even if the CSI shareholders approve the Pineapple Merger Proposal.

 

If the merger is terminated or not consummated for any reason, it is expected that the CSI board of directors will consider the full range of strategic alternatives regarding the use of its remaining cash and other assets, the S&S Segment business, and the future of CSI, with a view to maximizing value for our shareholders under the circumstances. These strategic alternatives may include pursuing an alternative transaction to the merger, retaining some or all of the cash or other assets, the acquisition of a new business or an investment in the S&S Segment business, adoption of a plan of liquidation, or a combination of these.

28 

 

CSI shareholders may not realize a benefit from the merger commensurate with the ownership dilution they will experience in connection with the merger and the PIPE Offering.

 

If the combined company is unable to realize the full strategic and financial benefits currently anticipated from the merger, CSI shareholders will have experienced substantial dilution of their ownership interests in CSI, including as a result of the PIPE Offering, without receiving any commensurate benefit, or only receiving part of the commensurate benefit to the extent the combined company is able to realize only part of the strategic and financial benefits currently anticipated from the merger and the PIPE Offering.

 

Additionally, if the adjustment provisions in Series A convertible preferred stock or warrants to be issued in the PIPE Offering are triggered, a substantial number of additional shares of the combined company’s common stock may become issuable, increasing the dilution CSI shareholders will experience due to the merger and the PIPE Offering.

 

CSI shareholders may not receive any payment on the CVRs and the CVRs may otherwise expire valueless.

 

The right of CSI shareholders to receive any future payment for or derive any value from the CVRs will be contingent solely upon the CSI’s ability to monetize all or any part of CSI’s legacy assets through a Legacy Monetization within the time periods specified in the CVR agreement and the consideration received being greater than the amounts permitted to be retained or deducted by the combined company under the CVR agreement. There is currently no third-party sale or transaction involving the S&S Segment planned or contemplated and there is no guarantee that CSI or the combined company will be able to find a buyer for the S&S Segment or any other legacy asset. If a Legacy Monetization is not achieved within the time periods specified in the CVR agreement or the consideration received is not greater than the amounts permitted to be retained or deducted by the combined company, no payments will be made under the CVR agreement, and the CVRs will expire valueless.

 

Furthermore, the CVRs will be unsecured obligations of the combined company and all payments under the CVRs, all other obligations under the CVR agreement and the CVRs and any rights or claims relating thereto will be subordinated in right of payment to the prior payment in full of any current or future obligations of the combined company ranking senior in right of payment. Accordingly, the combined company may be prohibited by the combined company’s obligations to senior creditors from making payments on the CVRs from the net proceeds of a Legacy Monetization.

 

The merger consideration at the closing may have a greater or lesser value than at the time the merger agreement was signed.

 

The merger agreement has set the Base Consideration at 15,600,000 shares, which will be increased for any outstanding convertible notes in the Convertible Note Financing at a rate of one additional share for every $2.00 in unpaid principal and accrued interest on outstanding convertible notes and decreased for outstanding indebtedness of Pineapple at the closing of the merger in excess of $22.5 million at a rate one share for every $2.00 of excess indebtedness, as described in the section entitled “THE MERGER AGREEMENT—Merger Consideration.” The merger agreement has also fixed the number of shares representing the Earnout Consideration for the occurrence of each of the milestones specified in the merger agreement, as described in the section entitled “THE MERGER AGREEMENT—Merger Consideration.”

 

The merger agreement does not include a price-based termination right. Therefore, if before the issuance of shares of CSI common stock in connection with the merger (whether at the time of closing of the merger or at the later time that any milestones are achieved) the market price of CSI common stock declines from the market price on the date of the merger agreement, then Pineapple members could receive merger consideration with substantially lower value than the value of such merger consideration on the date of the merger agreement. Similarly, if before the issuance of shares of CSI common stock in connection with the merger, the market price of CSI common stock increases from the market price of CSI common stock on the date of the merger agreement, then Pineapple members could receive merger consideration with substantially greater value than the value of such merger consideration on the date of the merger agreement. Because the Merger Consideration does not adjust as a direct result of changes in the market price of CSI common stock, changes in the market price of CSI common stock will change the value of the total merger consideration payable to Pineapple members pursuant to the merger agreement.

29 

 

Stock price changes may result from a variety of factors, including, but not limited to, changes in CSI’s business or the business of the combined company, operations and prospects, reductions or changes in U.S. government spending or budgetary policies, market assessments of the likelihood that the merger will be completed, interest rates, federal, state, and local legislation, governmental regulation, legal developments in the industry segments in which CSI or Pineapple operate, the timing of the merger, and general market, industry and economic conditions, including pandemics and other public health emergencies. The COVID-19 pandemic, in particular, has introduced unusually high levels of volatility into financial and stock markets, and may affect the value of CSI common stock.

 

The issuance of shares of CSI common stock to Pineapple unit holders in the merger and the issuance of shares to the PIPE Investors in the PIPE Offering will substantially dilute the voting power of the current CSI shareholders.

 

Immediately following the consummation of both the merger and the PIPE Offering, the pre-merger CSI shareholders are expected to own approximately 28.0% of the combined company, on a fully-diluted basis, the pre-merger Pineapple unit holders are expected to own approximately 44.9% of the combined company, on a fully-diluted basis, and the PIPE Investors are expected to own approximately 27.1% of the combined company, on a fully-diluted basis. As part of the fully diluted share ownership, the foregoing calculation (i) includes the Base Consideration that CSI will issue in the merger, (ii) excludes any additional shares of CSI common stock that are issuable in connection with the merger such as the Earnout Consideration or the Convertible Note Financing, (iii) includes the shares of the combined company common stock that are issuable on conversion of the Series A convertible preferred stock and exercise of warrants issued in the PIPE Offering, and (iv) excludes any shares of combined company common stock issued in connection with awards under the 2021 Equity Incentive Plan shareholders are being asked to approve at the special meeting. Accordingly, the issuance of shares of CSI common stock to Pineapple unit holders in the merger and the issuance of shares to the PIPE Investors in the PIPE Offering will reduce significantly the relative voting power of each share of CSI common stock held by current CSI shareholders. Consequently, the CSI shareholders as a group will have significantly less influence over the management and policies of the combined company after the merger than prior to the merger and PIPE Offering.

 

While the Pineapple Merger Transaction is pending, it creates uncertainty about our future, which could have a material adverse effect on our business, financial condition and results of operations.

 

While the Pineapple Merger Transaction is pending, it creates uncertainty about our future. As a result of this uncertainty, our current or potential customers of the S&S Segment may decide to delay, defer or cancel orders with us pending completion or termination of the Pineapple Merger Transaction. In addition, while the Pineapple Merger Transaction is pending, we are subject to a number of risks, including:

 

 

the diversion of management and employee attention from our efforts to divest our other current operating and non-operating assets;

 

 

the potential disruption to business partners and other service providers of the S&S Segment; and

 

 

the loss of employees who may depart due to concerns regarding uncertainty relating to their jobs following the closing of the Pineapple Merger Transaction.

 

The occurrence of any of these events individually or in combination could have a material adverse effect on our business, financial condition and results of operations. Additionally, we have incurred substantial transaction costs and diversion of management resources in connection with the Pineapple Merger Transaction, and we will continue to do so until the closing.

 

We expect to incur substantial expenses related to the Pineapple Merger Transaction.

 

CSI expects to incur approximately $2.9 million in transaction expenses relating to the Pineapple Merger Transaction. These expenses include, but are not limited to, legal, accounting and financial advisory fees and expenses, filing fees, printing expenses, and other related fees and expenses. There are many factors beyond our control that could affect the total amount or the timing of Pineapple Merger Transaction. Moreover, many of the expenses that will be incurred are, by their nature, difficult to estimate accurately. Our future operating results and financial condition may be materially adversely affected by transaction expenses. Additionally, many of these

30 

 

expenses will be payable by CSI regardless of whether the Pineapple Merger Transaction is completed. If the Pineapple Merger Transaction is completed, the merger agreement provides that the combined company will bear the merger-related transaction expenses of Pineapple and CSI. Pineapple expects to incur approximately $2.1 million in transaction expenses relating to the Pineapple Merger Transaction.

 

Additionally, the combined company expects to incur significant one-time costs in connection with the merger, including transaction costs, integration costs, and other costs that CSI’s and Pineapple’s respective management teams believe are necessary to realize the anticipated synergies from the merger. The combined company will also bear the expenses associated with the PIPE Offering, which are expected to be approximately $2.9 million.

 

The future operating results and financial condition of CSI and the combined company may be materially adversely affected by transaction expenses.

 

Following the Pineapple Merger Transaction, the continuing costs and burdens associated with being a public company will constitute a much larger percentage of our annual revenue.

 

If the Pineapple Merger Transaction is completed, we will remain a public company and will continue to be subject to Nasdaq Stock Market listing standards and SEC rules and regulations, including the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Sarbanes-Oxley Act of 2002. Although all public companies face the costs and burdens associated with being public companies, the costs and burden of being a public company will be a significant portion of the revenue of the combined company, which will increase as a percentage of revenue if the S&S Segment business is sold.

 

The success of the merger will depend, in large part, on the ability of the combined company following the completion of the merger to realize the anticipated benefits of the merger and on the sales and profitability of the combined company.

 

The success of the merger will depend on the ability of the combined company to successfully integrate the respective businesses and personnel of Pineapple, HEC, E-Gear and CSI. This integration will be complex and time-consuming. The failure to successfully integrate and manage the challenges presented by the integration process may result in its failure to achieve some or all of the anticipated benefits of the merger.

 

Potential difficulties that may be encountered in the integration process include, among others:

 

 

the failure to successfully implement the combined company’s business plan, including its revenue and profitability goals;

 

 

risks associated with managing the larger and more complex combined company;

 

 

integrating CSI’s personnel and the personnel of the Pineapple, HEC and E-Gear while maintaining focus on providing consistent, high-quality products and service to customers;

 

 

the loss of key employees;

 

 

unanticipated issues in integrating financial reporting, information, communications and other systems;

 

 

unexpected liabilities of Pineapple, HEC or E-Gear;

 

 

the impact on CSI’s internal controls and compliance with the regulatory requirements under the Sarbanes-Oxley Act of 2002; and

 

 

potential unknown liabilities and unforeseen expenses, delays or regulatory conditions associated with the merger.

 

If any of these events were to occur, the combined company’s ability to maintain relationships with customers, suppliers and employees or its ability to achieve the anticipated benefits of the merger could be adversely affected, or could reduce its sales or earnings or otherwise adversely affect its business and financial results after the merger and, as a result, adversely affect the market price of its common stock.

31 

 

Apart from the merger, as part of Pineapple’s growth strategy, Pineapple has made and the combined company is expected to continue to make, acquisitions. The combined company’s continued growth may depend on its ability to identify and acquire companies that complement or enhance its business on acceptable terms, but it may not be able to identify or complete such future acquisitions. In addition, the combined company may not be able to integrate successfully its recent acquisitions, or any future acquisitions, operate these acquired companies profitably, or realize the anticipated benefits from these acquisitions.

 

Businesses that Pineapple has acquired or that the combined company may acquire in the future, may have liabilities which are not known to the combined company.

 

Pineapple has assumed certain liabilities of Sungevity, and will assume certain liabilities of HEC and E-Gear in the Pre-Closing Acquisition, and the combined company may assume liabilities of businesses that it acquires in the future. There may be liabilities or risks that Pineapple fails, or is unable, to discover, or that Pineapple underestimates, in the course of performing its due diligence investigations of acquired businesses. Additionally, businesses that Pineapple has acquired or that the combined company may acquire in the future may have made previous acquisitions, and the combined company will be subject to certain liabilities and risks relating to these prior acquisitions as well. The combined company cannot assure you that its rights to indemnification contained in definitive acquisition agreements that it has entered or may enter into will be sufficient in amount, scope or duration to fully offset the possible liabilities associated with the business or property acquired. Any such liabilities, individually or in the aggregate, could have a material adverse effect on the combined company’s business, financial condition or results of operations. As the combined company continues to operate acquired businesses, it may learn additional information about them that adversely affects the combined company, such as unknown or contingent liabilities, issues relating to compliance with applicable laws or issues related to ongoing customer relationships or order demand.

 

Our future results following the Pineapple Merger Transaction may differ materially from the unaudited pro forma financial statements included in this proxy statement/prospectus.

 

The unaudited pro forma condensed combined financial statements included in this proxy statement/prospectus presents CSI’s historical consolidated financial statements as adjusted to give effect to the contemplated Pineapple Merger Transaction, including Pineapple’s acquisition of HEC and E-Gear. The unaudited pro forma condensed combined financial statements are not necessarily indicative of the financial condition or results of operations of Pineapple or the combined company business following the Pineapple Merger Transaction. In addition, the assumptions used in preparing the pro forma financial information may not prove to be accurate, and other factors may affect our financial condition and results of operations following the Pineapple Merger Transaction. Any change in our financial condition or results of operations may cause significant variations in the price of our common stock. See “UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION” at Appendix F for more information.

 

Risks Related to Pineapple

 

Pineapple’s recurring operating losses have raised substantial doubt regarding its ability to continue as a going concern.

 

Pineapple’s recurring operating losses raise substantial doubt about its ability to continue as a going concern. For the fiscal year ended December 31, 2020, Pineapple’s independent registered public accounting firm has issued its report on Pineapple’s financial statements and has expressed substantial doubt about its ability to continue as a going concern. Pineapple has no current source of revenue to sustain its present activities. Accordingly, Pineapple’s ability to continue as a going concern will depend on its ability to generate revenue and its ability to complete the Pineapple Merger Transaction, which will significantly increase Pineapple’s liquidity through the $32 million PIPE Offering. Uncertainty surrounding Pineapple’s ability to continue as a going concern may make it more difficult for Pineapple to obtain financing for the continuation of its operations and could result in a loss of confidence by investors, suppliers, contractors, and employees.

 

Pineapple’s relatively short operating history may make it difficult for investors to evaluate the success of its business to date and to assess its future viability.

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Pineapple was formed on December 1, 2020 to acquire and grow leading local and regional solar, storage, and energy services companies nationwide. Pineapple’s operations to date have been limited to organizing and staffing its company, business planning, raising capital, and acquiring certain assets of Sungevity and Horizon Solar Power in December 2020. Pineapple has not yet demonstrated its ability to successfully generate substantial revenue from the Sungevity and Horizon Solar Power assets.

 

Additionally, there is no operating history on which you may evaluate this business and its prospects. Investment in a start-up company such as Pineapple is inherently subject to many risks. These risks and difficulties include challenges in accurate financial planning as a result of: (a) uncertainties resulting from a relatively limited time period in which to develop and evaluate business strategies as compared to companies with longer operating histories; (b) the fact that the Sungevity and Horizon Solar Power assets are insufficient for full commercial operations; (c) a limited number of personnel to conduct Pineapple’s operations and reliance on third parties for certain aspects of its operations; (d) financing the business; and (e) meeting the challenges of the other risk factors described herein. Pineapple has no operating history upon which investors may base an evaluation of its performance; therefore, it is subject to all risks incident to the creation and development of a new business. There can be no assurance that Pineapple can realize its plans on the projected timetable in order to reach sustainable or profitable operations or to execute its growth strategy of acquiring leading local and regional solar installers around the United States.

 

Pineapple and HEC and E-Gear each have material weaknesses in internal control over financial reporting and will need to hire additional personnel and design and implement proper and effective internal control over financial reporting. The combined company may identify additional material weaknesses in the future that may cause it to fail to meet its reporting obligations or result in material misstatements in its financial statements. If the combined company fails to remediate Pineapple and HEC and E-Gear’s material weaknesses, it may not be able to report our financial results accurately or to prevent fraud.

 

The combined company’s management will be responsible for establishing and maintaining internal control over financial reporting, disclosure controls, and compliance with the other requirements of the Sarbanes-Oxley Act and the rules promulgated by the SEC thereunder. Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with US GAAP. The PCAOB defines a material weakness as a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of annual or interim financial statements will not be prevented, or detected and corrected, on a timely basis.

 

During the preparation of Pineapple’s financial statements for the period ended December 31, 2020, it and its independent registered public accounting firm identified a material weakness related to the lack of an appropriate review of the internally prepared financial statements which resulted in the Pineapple’s failure to detect and correct certain misstatements and omissions within its consolidated financial statements. Such misstatements and omissions have been corrected in the accompanying financial statements for the years ended December 31, 2020, but such misstatements and omissions would not have been corrected but for the audit procedures. Pineapple’s independent registered public accounting firm identified that Pineapple lacks sufficient resources and a robust system of internal controls over financial reporting to support the reporting obligations that are consistent with the requirements of a public company.

 

During the preparation of HEC and E-Gear’s combined financial statements for the years ended December 31, 2020 and 2019, its independent registered public accounting firm identified a material weakness related to the lack of an appropriate review of the internally prepared financial statements which resulted in the HEC and E-Gear’s failure to detect and correct certain misstatements and omissions within its consolidated financial statements. Such misstatements have been corrected in the accompanying financial statements for the years ended December 31, 2020, but such misstatements would not have been corrected but for the audit procedures. Pineapple’s independent registered public accounting firm identified that Pineapple lacks sufficient resources and a robust system of internal controls over financial reporting to support the reporting obligations that are consistent with the requirements of a public company.

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Management of the combined company will aim to remediate the material weaknesses described above through hiring additional qualified accounting and financial reporting personnel, and designing and implementing financial reporting systems, processes, policies and internal control. However, the combined company will not be able to fully remediate these material weaknesses until these steps have been completed and are functioning effectively, which may expose the combined company to errors, losses or fraud until remediated. In addition, the combined company cannot provide an estimate of the costs it expect to incur or the expected timeline in connection with implementing its remediation plan. These remediation measures may be time-consuming and costly, and might place significant demands on the combined company’s financial and operational resources. If the combined company is unable to successfully remediate these material weaknesses or successfully supervise and rely on outside advisors with expertise in these matters to assist us in the preparation of its financial statements, its financial statements could contain material misstatements that, when discovered in the future, could cause it to fail to meet its future reporting obligations and cause the price of its common stock to decline.

 

Risks Related to the Combined Company Following the Merger

 

Risks Relating to the Combined Company’s Business

 

The combined company’s growth strategy depends on the continued origination of solar service agreements.

 

The combined company’s growth strategy depends on the continued origination of solar service agreements. The combined company may be unable to originate additional solar service agreements and related solar energy systems in the numbers or at the pace the combined company currently expects for a variety of reasons, including, but not limited to, the following:

 

 

demand for solar energy systems failing to develop sufficiently or taking longer than expected to develop;

 

 

residential solar energy technology being available at economically attractive prices as a result of factors outside of the combined company’s control, including utility prices not rising as quickly as anticipated;

 

 

issues related to financing, construction, permitting, the environment, governmental approvals and the negotiation of solar service agreements;

 

 

a reduction in government incentives or adverse changes in policy and laws for the development or use of solar energy, including net metering, solar renewable energy credits (“SRECs”) and tax credits;

 

 

other government or regulatory actions that could impact the combined company’s business model;

 

 

negative developments in public perception of the solar energy industry; and

 

 

competition from other solar companies and energy technologies, including the emergence of alternative renewable energy technologies.

 

If the challenges of originating solar service agreements increase, the combined company’s pool of available opportunities may be limited, which could have a material adverse effect on its business, financial condition, cash flows and results of operations.

 

If sufficient additional demand for residential solar energy systems does not develop or takes longer to develop than the combined company anticipates, its ability to originate solar service agreements may decrease.

 

The distributed residential solar energy market is at a relatively early stage of development in comparison to fossil fuel-based electricity generation. If additional demand for distributed residential solar energy systems fails to develop sufficiently or takes longer to develop than the combined company anticipates, it may be unable to originate additional solar service agreements and related solar energy systems to grow its business. In addition, demand for solar energy systems in the combined company’s targeted markets may not develop to the extent it anticipates. As a

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result, the combined company may be unsuccessful in broadening its customer base through origination of solar service agreements and related solar energy systems within its current markets or in new markets it may enter.

 

Many factors may affect the demand for solar energy systems, including, but not limited to, the following:

 

 

availability, substance and magnitude of solar support programs including government targets, subsidies, incentives, renewable portfolio standards and residential net metering rules;

 

 

the relative pricing of other conventional and non-renewable energy sources, such as natural gas, coal, oil and other fossil fuels, wind, utility-scale solar, nuclear, geothermal and biomass;

 

 

performance, reliability and availability of energy generated by solar energy systems compared to conventional and other non-solar renewable energy sources;

 

 

availability and performance of energy storage technology, the ability to implement such technology for use in conjunction with solar energy systems and the cost competitiveness such technology provides to customers as compared to costs for those customers reliant on the conventional electrical grid; and

 

 

general economic conditions and the level of interest rates.

 

The residential solar energy industry is constantly evolving, which makes it difficult to evaluate the combined company’s prospects. The combined company cannot be certain if historical growth rates reflect future opportunities or whether growth anticipated by it will be realized. The failure of distributed residential solar energy to achieve, or its being significantly delayed in achieving, widespread adoption could have a material adverse effect on the combined company’s business, financial condition and results of operations.

 

If the combined company fails to manage its operations and growth effectively, it may be unable to execute its business plan, maintain high levels of customer service or adequately address competitive challenges.

 

The combined company will be focused on achieving significant revenue growth in the future measured by its number of customers and it intends to continue its efforts to expand its business within existing and new markets. This growth may place a strain on the combined company’s management, operational and financial infrastructure. The combined company’s growth requires management to devote a significant amount of time and effort to maintain and expand its relationships with customers and third parties, attract new customers, arrange financing for its growth and manage its expansion into additional markets.

 

In addition, the combined company’s current and planned operations, personnel, information technology and other systems and procedures might be inadequate to support future growth and may require it to make additional unanticipated investments in its infrastructure. The combined company’s success and ability to further scale its business will depend, in part, on its ability to manage these changes in a cost-effective and efficient manner.

 

If the combined company cannot manage its operations and growth, it may be unable to meet its or others’ expectations regarding growth, opportunity and financial targets, take advantage of market opportunities, execute its business strategies or respond to competitive pressures. This could also result in declines in quality or customer satisfaction, increased costs, difficulties in introducing new offerings or other operational difficulties. Any failure to effectively manage the combined company’s operations and growth could adversely impact its reputation, business, financial condition, cash flows and results of operations.

 

A material reduction in the retail price of electricity charged by electric utilities or other retail electricity providers could harm the combined company’s business, financial condition and results of operations.

 

Decreases in the retail price of electricity from electric utilities or from other retail electric providers, including other renewable energy sources such as larger-scale solar energy systems, could make the combined company’s offerings less economically attractive. The price of electricity from utilities could decrease for any one or more reasons, including but not limited to:

 

 

the construction of a significant number of new power generation plants, whether generated by natural gas, nuclear power, coal or renewable energy;

 

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the construction of additional electric transmission and distribution lines;

 

 

a reduction in the price of natural gas or other natural resources as a result of increased supply due to new drilling techniques or other technological developments, a relaxation of associated regulatory standards or broader economic or policy developments;

 

 

less demand for electricity due to energy conservation technologies and public initiatives to reduce electricity consumption or to recessionary economic conditions; and

 

 

development of competing energy technologies that provide less expensive energy.

 

A reduction in electric utilities’ rates or changes to peak hour pricing policies or rate design (such as the adoption of a fixed or flat rate) could also make the combined company’s offerings less competitive with the price of electricity from the electrical grid. If the cost of energy available from electric utilities or other providers were to decrease relative to solar energy generated from residential solar energy systems or if similar events impacting the economics of the combined company’s offerings were to occur, it may have difficulty attracting new customers or existing customers may default or seek to terminate, cancel or otherwise avoid the obligations under their solar service agreements. For example, large utilities in California have started transitioning customers to time-of-use rates and also have adopted a shift in the peak period for time-of-use rates to later in the day. Unless grandfathered under a different rate, residential customers with solar energy systems are required to take service under time-of-use rates with the later peak period. Moving utility customers to time-of-use rates or the shift in the timing of peak rates for utility-generated electricity to include times of day when solar energy generation is less efficient or non-operable could also make the combined company’s offerings less competitive. Time-of-use rates could also result in higher costs for the combined company’s customers whose electricity requirements are not fully met by its offerings during peak periods.

 

Additionally, the price of electricity from utilities may grow less quickly than the escalator feature in certain of the combined company’s solar service agreements, which could also make its solar energy systems less competitive with the price of electricity from the electrical grid and result in a material adverse effect on the combined company’s business, financial condition and results of operations.

 

The combined company needs to obtain substantial additional financing arrangements to provide working capital and growth capital and if financing is not available to it on acceptable terms when needed, its ability to continue to grow its business would be materially adversely impacted.

 

Distributed residential solar power is a capital-intensive business that relies heavily on the availability of debt and equity financing sources to fund solar energy system purchase, design, engineering and other capital expenditures. The combined company’s future success depends in part on its ability to raise capital from third-party investors and commercial sources, such as banks and other lenders, on competitive terms to help finance the deployment of its solar energy systems. The combined company seeks to minimize its cost of capital in order to improve profitability and maintain the price competitiveness of the electricity produced by, the payments for and the cost of its solar energy systems. The combined company relies on access to capital to cover the costs related to bringing its solar energy systems in service, although its customers ultimately bear responsibility for those costs pursuant to its solar service agreements.

 

To meet the capital needs of the combined company’s growing business, it will need to obtain additional debt or equity financing from current and new investors. If any of the combined company’s debt or equity investors decide not to invest in it in the future for any reason, or decide to invest at levels inadequate to support its anticipated needs or materially change the terms under which they are willing to provide future financing, it will need to identify new investors and financial institutions to provide financing and negotiate new financing terms. In addition, the combined company’s ability to obtain additional financing through the asset-backed securities market or other secured debt markets is subject to the combined company having sufficient assets eligible for securitization as well as the combined company’s ability to obtain appropriate credit ratings. If the combined company is unable to raise additional capital in a timely manner, its ability to meet its capital needs and fund future growth may be limited.

 

Delays in obtaining financing could cause delays in expansion in existing markets or entering into new markets and hiring additional personnel. Any future delays in capital raising could similarly cause the combined company to delay deployment of a substantial number of solar energy systems for which it has signed solar service agreements

 

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with customers. The combined company’s future ability to obtain additional financing depends on banks’ and other financing sources’ continued confidence in its business model and the renewable energy industry as a whole. It could also be impacted by the liquidity needs of such financing sources themselves. The combined company faces intense competition from a variety of other companies, technologies and financing structures for such limited investment capital. If the combined company is unable to continue to offer a competitive investment profile, it may lose access to these funds or they may only be available to it on terms less favorable than those received by its competitors. For example, if the combined company experiences higher customer default rates than it has historically experienced, it could be more difficult or costly to attract future financing. Any inability to secure financing could lead the combined company to cancel planned installations, impair its ability to accept new customers or increase its borrowing costs, any of which could have a material adverse effect on its business, financial condition and results of operations.

 

Pineapple’s business prospects are dependent in part on a continuing decline in the cost of solar energy system components and the combined company’s business may be adversely affected to the extent the cost of such components stabilize or increase in the future.

 

The market for residential solar energy systems has benefitted from the declining cost of solar energy system components and to the extent such costs stabilize, decline at a slower rate or increase, the combined company’s future growth rate may be negatively impacted. The declining cost of solar energy system components and the raw materials necessary to manufacture them has been a key driver in the price of solar energy systems, the prices charged for electricity and customer adoption of solar energy. Solar energy system component and raw material prices may not continue to decline at the same rate as they have over the past several years or at all. In addition, growth in the solar industry and the resulting increase in demand for solar energy system components and the raw materials necessary to manufacture them may also put upward pressure on prices. An increase of solar energy system components and raw materials prices could slow the combined company’s growth and cause its business and results of operations to suffer. Further, the cost of solar energy system components and raw materials has increased and could increase in the future due to tariff penalties, duties, the loss of or changes in economic governmental incentives or other factors.

 

The combined company faces competition from centralized electric utilities, retail electric providers, independent power producers and renewable energy companies.

 

The solar energy and renewable energy industries are both highly competitive and continually evolving as participants strive to distinguish themselves within their markets and compete with large centralized electric utilities. The combined company will compete with these centralized electric utilities primarily based on price (cents per kWh), predictability of future prices (by providing pre-determined annual price escalations) and the ease by which customers can switch to electricity generated by its solar energy systems. The combined company may also compete based on other value-added benefits, such as reliability and carbon-friendly power. If the combined company cannot offer compelling value to its customers based on these factors, its business may not grow.

 

Centralized electric utilities generally have substantially greater financial, technical, operational and other resources than the combined company does. As a result, these competitors may be able to devote more resources to the research, development, promotion and sale of their products or services or respond more quickly to evolving industry standards and changes in market conditions than the combined company can. Centralized electric utilities could also offer other value-added products or services that could help them to compete with the combined company, even if the cost of electricity they offer is higher than the combined company’s. In addition, a majority of utilities’ sources of electricity is non-solar, which may allow utilities to sell electricity more cheaply than electricity generated by the combined company’s solar energy systems. Centralized electric utilities could also offer customers the option of purchasing electricity obtained from renewable energy resources, including solar, which would compete with the combined company’s offerings.

 

The combined company will also compete with retail electric providers and independent power producers not regulated like centralized electric utilities but which have access to the centralized utilities’ electricity transmission and distribution infrastructure pursuant to state, territorial and local pro-competition and consumer choice policies. These retail electric providers and independent power producers are able to offer customers electricity supply-only solutions that are competitive with the combined company’s solar energy system options on both price and usage of renewable energy technology while avoiding the longer-term agreements and physical installations the combined

 

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company’s business model requires. This may limit the combined company’s ability to acquire new customers, particularly those who wish to avoid long-term agreements or have an aesthetic or other objection to putting solar panels on their roofs.

 

The combined company will also compete with solar companies with business models similar to its own, who market to similar potential customers. Some of these competitors specialize in the distributed residential solar energy market and some may provide energy at lower costs than it does. Some of the combined company’s competitors offer or may offer similar services and products as the combined company. Many of the combined company’s competitors also have significant brand name recognition and have extensive knowledge of its target markets.

 

The combined company will also compete with solar companies that offer community solar products and utility companies that provide renewable power purchase programs. Some customers might choose to subscribe to a community solar project or renewable subscriber programs instead of installing a solar energy system on their home, which could affect the combined company’s sales. Additionally, some utility companies (and some utility-like entities, such as community choice aggregators in California) have generation portfolios that are increasingly renewable in nature. In California, for example, due to recent legislation, utility companies and community choice aggregators in that state are required to have generation portfolios comprised of 60% renewable energy by 2030 and state regulators are planning for utility companies and community choice aggregators to sell 100% greenhouse gas free electricity to retail customers by 2045. As utility companies offer increasingly renewable portfolios to retail customers, those customers might be less inclined to install a solar energy system at their home, which could adversely affect the combined company’s growth.

 

The combined company will compete with companies who sell solar energy systems and services in the commercial, industrial and government markets, in addition to the residential market, in the U.S. and foreign markets. There is intense competition in the residential solar energy sector in the markets in which the combined company operates. As new entrants continue to enter into these markets, the combined company may be unable to grow or maintain its operations and it may be unable to compete with companies that earn revenue in both the residential market and non-residential markets. Further, because Pineapple, HEC and E-Gear currently provide services exclusively to residential customers, the combined company will have a less diverse market presence and will be more exposed to potential adverse changes in the residential market than its competitors that sell solar energy systems and services in the commercial, industrial, government and utility markets.

 

As the solar industry grows and evolves, the combined company will also face new competitors and technologies who are not currently in the market. The combined company’s industry is characterized by low technological barriers to entry and well-capitalized companies, including utilities and integrated energy companies, could choose to enter the market and compete with us. The combined company’s failure to adapt to changing market conditions and to compete successfully with existing or new competitors will limit its growth and will have a material adverse effect on its business, financial condition and results of operations.

 

Developments in technology or improvements in distributed solar energy generation and related technologies or components may materially adversely affect demand for the combined company’s offerings.

 

Significant developments in technology, such as advances in distributed solar power generation, energy storage solutions such as batteries, energy storage management systems, the widespread use or adoption of fuel cells for residential or commercial properties or improvements in other forms of distributed or centralized power production may materially and adversely affect demand for the combined company’s offerings and otherwise affect its business. Future technological advancements may result in reduced prices to consumers or more efficient solar energy systems than those available today, either of which may result in current customer dissatisfaction. The combined company may not be able to adopt these new technologies as quickly as its competitors or on a cost-effective basis.

 

It is possible that the solar energy system deployed on a customer’s residence may be outdated prior to the expiration of the term of the related solar service agreement, reducing the likelihood of renewal of the combined company’s solar service agreement at the end of the applicable term and possibly increasing the occurrence of customers seeking to terminate or cancel their solar service agreements or defaults. If current customers become dissatisfied with the price they pay for their solar energy system under the combined company’s solar service agreements relative to prices that may be available in the future or if customers become dissatisfied by the output generated by

 

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their solar energy systems relative to future solar energy system production capabilities, or both, this may lead to customers seeking to terminate or cancel their solar service agreements or higher rates of customer default, which would adversely affect the combined company’s business, financial condition and results of operations. Additionally, recent technological advancements may impact the combined company’s business in ways it does not currently anticipate. Any failure by the combined company to adopt or have access to new or enhanced technologies or processes, or to react to changes in existing technologies, could result in product obsolescence or the loss of competitiveness of and decreased consumer interest in its solar energy services, which could have a material adverse effect on its business, financial condition and results of operations.

 

The combined company will depend on a limited number of suppliers of solar energy system components and technologies to adequately meet demand for its solar energy systems. Due to the limited number of suppliers in the combined company’s industry, the acquisition of any of these suppliers by a competitor or any shortage, delay, price change, imposition of tariffs or duties or other limitation in its ability to obtain components or technologies it uses could result in sales and installation delays, cancelations, and loss of customers.

 

The combined company will purchase solar panels, inverters, energy storage systems and other system components and instruments from a limited number of suppliers making it susceptible to quality issues, shortages and price changes. If one or more of the suppliers the combined company relies upon to meet anticipated demand ceases or reduces production due to its financial condition, acquisition by a competitor or otherwise, is unable to increase production as industry demand increases or is otherwise unable to allocate sufficient production to it, it may be difficult to quickly identify alternative suppliers or to qualify alternative products on commercially reasonable terms and the combined company’s ability to satisfy this demand may be adversely affected. There are a limited number of suppliers of solar energy system components, instruments and technologies. While the combined company believes there are other available sources of supply for these products, its need to transition to a new supplier may result in additional costs and delays in originating solar service agreements and deploying its related solar energy systems, which in turn may result in additional costs and delays in its acquisition of such solar service agreements and related solar energy systems. These issues could have a material adverse effect on the combined company’s business, financial condition and results of operations.

 

There have also been periods of industry-wide shortages of key components and instruments, including batteries and inverters, in times of rapid industry growth. The manufacturing infrastructure for some of these components has a long lead-time, requires significant capital investment and relies on the continued availability of key commodity materials, which could potentially result in an inability to meet demand for these components. The solar industry is currently experiencing rapid growth and, as a result, shortages of key components or instruments, including solar panels, may be more likely to occur, which in turn may result in price increases for such components. Even if industry-wide shortages do not occur, manufacturers and suppliers experiencing high demand or insufficient production capacity for key components may allocate these key components to customers other than the combined company or its suppliers. The combined company’s ability to originate solar service agreements and related solar energy systems would be reduced as a result of the allocation of key components by manufacturers and suppliers.

 

The combined company’s supply chain and operations could be subject to natural disasters and other events beyond its control, such as earthquakes, wildfires, flooding, hurricanes, tsunamis, typhoons, volcanic eruptions, droughts, tornadoes, power outages or other natural disasters, the effects of climate change and related extreme weather, public health issues and pandemics, war, terrorism, government restrictions or limitations on trade, and geo-political unrest and uncertainties. Human rights and forced labor issues in foreign countries and the U.S. government’s response to them could disrupt the combined company’s supply chain and its operations could be adversely impacted. Additionally, if the impacts of the COVID-19 outbreak, including the accompanying travel restrictions and business closures, continue for an extended period of time or worsen, the supply and pricing of the combined company’s inverters and other goods and therefore its ability to install new solar energy systems could be adversely affected. The extent of the impact of COVID-19 on the combined company’s business and operations will depend on, among other factors, the duration and severity of the outbreak, travel restrictions and business closures imposed and its ability to contract for supply from other sources on acceptable terms.

 

 

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Increases in the cost of the combined company’s solar energy systems due to tariffs imposed by the U.S. government could have a material adverse effect on its business, financial condition and results of operations.

 

China is a major producer of solar cells and other solar products. Certain solar cells, modules, laminates and panels from China are subject to various U.S. antidumping and countervailing duty rates, depending on the exporter supplying the product, imposed by the U.S. government as a result of determinations that the U.S. was materially injured as a result of such imports being sold at less than fair value and subsidized by the Chinese government. If alternative sources are not available on competitive terms in the future, the combined company may seek to purchase these products from manufacturers in China. In addition, tariffs on solar cells, modules and inverters in China may put upward pressure on prices of these products in other jurisdictions from which the combined company currently purchases equipment, which could reduce its ability to offer competitive pricing to potential customers.

 

The combined company cannot predict what, if any, additional actions the U.S. may adopt with respect to tariffs or other trade regulations or what actions may be taken by other countries in retaliation for such measures. If additional measures are imposed or other negotiated outcomes occur, the combined company’s ability to purchase these products on competitive terms or to access specialized technologies from other countries could be further limited, which could adversely affect its business, financial condition and results of operations.

 

The combined company’s operating results and its ability to grow may fluctuate from quarter to quarter and year to year, which could make its future performance difficult to predict and could cause its operating results for a particular period to fall below expectations.

 

The combined company’s quarterly and annual operating results are difficult to predict and may fluctuate significantly in the future. In addition to the other risks described in this “Risk Factors” section, the following factors could cause the combined company’s operating results to fluctuate:

 

 

expiration or initiation of any governmental rebates or incentives;

 

 

significant fluctuations in customer demand for the combined company’s solar energy services and solar energy systems;

 

 

the availability, terms and costs of suitable financing;

 

 

the amount, timing of sales and potential decreases in value of SRECs;

 

 

our ability to continue to expand the combined company’s operations and the amount and timing of expenditures related to this expansion;

 

 

announcements by the combined company or its competitors of significant acquisitions, strategic partnerships, joint ventures or capital-raising activities or commitments;

 

 

changes in the combined company’s pricing policies or terms or those of its competitors, including centralized electric utilities;

 

 

actual or anticipated developments in the combined company’s competitors’ businesses, technology or the competitive landscape; and

 

 

natural disasters or other weather or meteorological conditions.

 

For these or other reasons, past performance of Pineapple, HEC or E-Gear should not be relied upon as indications of the combined company’s future performance.

 

If the combined company is unable to make acquisitions on economically acceptable terms, its future growth would be limited, and any acquisitions it may make could reduce, rather than increase, its cash flows.

 

The combined company intends to acquire solar energy systems, energy storage systems and related businesses and joint ventures. The consummation and timing of any future acquisitions will depend upon, among other things, whether the combined company is able to:

 

 

identify attractive acquisition candidates;

 

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negotiate economically acceptable purchase agreements;

 

 

obtain any required governmental or third-party consents;

 

 

obtain financing for these acquisitions on economically acceptable terms, which may be more difficult at times when the capital markets are less accessible; and

 

 

outbid any competing bidders.

 

Additionally, any acquisition involves potential risks, including, among other things:

 

 

mistaken assumptions about assets, revenues and costs of the acquired company, including synergies and potential growth;

 

 

an inability to secure adequate customer commitments to use the acquired systems or facilities;

 

 

an inability to successfully integrate the assets or businesses the combined company acquires;

 

 

coordinating geographically disparate organizations, systems and facilities;

 

 

the assumption of unknown liabilities for which the combined company is not indemnified or for which its indemnity is inadequate;

 

 

mistaken assumptions about the acquired company’s suppliers or other vendors;

 

 

the diversion of management’s and employees’ attention from other business concerns;

 

 

unforeseen difficulties operating in new geographic areas and business lines;

 

 

customer or key employee losses at the acquired business; and

 

 

poor quality assets or installation.

 

If the combined company consummates any future acquisitions, its capitalization, results of operations and future growth may change significantly and its shareholders may not have the opportunity to evaluate the economic, financial and other relevant information considered in deciding to engage in these future acquisitions.

 

Product liability and property damage claims against the combined company or accidents could result in adverse publicity and potentially significant monetary damages.

 

It is possible that the combined company’s solar energy systems could injure its customers or other third parties or its solar energy systems could cause property damage as a result of product malfunctions, defects, improper installation, fire or other causes. Any product liability claim the combined company faces could be expensive to defend and may divert management’s attention. The successful assertion of product liability claims against the combined company could result in potentially significant monetary damages, potential increases in insurance expenses, penalties or fines, subject it to adverse publicity, damage its reputation and competitive position and adversely affect sales of solar energy systems. In addition, product liability claims, injuries, defects or other problems experienced by other companies in the residential solar industry could lead to unfavorable market conditions to the industry as a whole and may have an adverse effect on the combined company’s ability to expand its portfolio of solar service agreements and related solar energy systems, thus affecting its business, financial condition and results of operations.

 

The combined company will not be able to insure against all potential risks and it may become subject to higher insurance premiums.

 

The combined company will be exposed to numerous risks inherent in the operation of solar energy systems, including equipment failure, manufacturing defects, natural disasters such as hurricanes, fires and earthquakes, terrorist attacks, sabotage, vandalism and environmental risks. Furthermore, components of the combined company’s solar energy systems, such as panels, inverters and batteries, could be damaged by severe weather, such as tsunamis, hurricanes, tornadoes, hailstorms or lightning. If the combined company’s solar energy systems are damaged in the event of a natural disaster beyond its control, losses could be outside the scope of insurance policies or exceed insurance policy limits and it could incur unforeseen costs that could harm its business and financial 

 

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condition. The combined company may also incur significant additional costs in taking actions in preparation for, or in reaction to, such events.

 

The combined company’s insurance policies will also cover legal and contractual liabilities arising out of bodily injury, personal injury or property damage to third parties and are subject to policy limits. The combined company will also maintain coverage for physical damage to its solar energy assets.

 

However, such policies do not cover all potential losses and coverage is not always available in the insurance market on commercially reasonable terms. Furthermore, the receipt of insurance proceeds may be delayed, requiring the combined company to use cash or incur financing costs in the interim. To the extent the combined company experiences covered losses under its insurance policies, the limit of its coverage for potential losses may be decreased or the insurance rates it has to pay increased. Furthermore, the losses insured through commercial insurance are subject to the credit risk of those insurance companies.

 

The combined company may not be able to maintain or obtain insurance of the type and amount it desires at reasonable rates. The insurance coverage the combined company does obtain may contain large deductibles or fail to cover certain risks or all potential losses. In addition, the combined company’s insurance policies will be subject to annual review by its insurers and may not be renewed on similar or favorable terms, including coverage, deductibles or premiums, or at all. If a significant accident or event occurs for which the combined company is not fully insured or it suffers losses due to one or more of its insurance carriers defaulting on their obligations or contesting their coverage obligations, it could have a material adverse effect on its business, financial condition and results of operations.

 

Damage to the combined company’s brand and reputation or change or loss of use of its brand could harm its business and results of operations.

 

The combined company will depend significantly on its reputation for high-quality products, excellent customer service and brand name to attract new customers and grow its business. If the combined company fails to continue to deliver its solar energy systems within the planned timelines, if its offerings do not perform as anticipated or if it damages any of its customers’ properties or delay or cancel projects, its brand and reputation could be significantly impaired. Future technological improvements may allow the combined company to offer lower prices or offer new technology to new customers; however, technical limitations in its current solar energy systems may prevent it from offering such lower prices or new technology to the combined company’s existing customers. The inability of the combined company’s current customers to benefit from technological improvements could cause its existing customers to lower the value they perceive the combined company’s existing products offer and impair its brand and reputation.

 

In addition, given the sheer number of interactions the combined company’s personnel will have with customers and potential customers, it is inevitable that some customers’ and potential customers’ interactions with it will be perceived as less than satisfactory. If the combined company cannot manage its hiring and training processes to avoid or minimize these issues to the extent possible, its reputation may be harmed and its ability to attract new customers would suffer.

 

The installation and operation of solar energy systems depends heavily on suitable solar and meteorological conditions. If meteorological conditions are unexpectedly unfavorable, the electricity production from the combined company’s solar energy systems may be substantially below its expectations and its ability to timely deploy new solar energy systems may be adversely impacted.

 

The energy produced and the revenue and cash flows generated by a solar energy system depend on suitable solar, atmospheric and weather conditions, all of which are beyond the combined company’s control.

 

If the solar energy systems underperform for any reason, the combined company’s business could suffer. Such solar, atmospheric and weather conditions, and other factors, can delay the timing of when solar energy systems can be installed and when the combined company can originate and begin to generate revenue from solar energy systems. This may increase the combined company’s expenses and decrease revenue and cash flows in the relevant periods. Furthermore, prevailing weather patterns could materially change in the future, making it harder to predict the average annual amount of sunlight striking each location where the combined company installs a solar energy 

 

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system. This could make the combined company’s solar energy systems less economical overall or make individual solar energy systems less economical. Any of these events or conditions could harm the combined company’s business, financial condition and results of operations. 

 

The loss of one or more members of the combined company’s senior management or key employees may adversely affect its ability to implement its strategy.

 

The combined company will depend on its experienced management team and the loss of one or more key executives could have a negative impact on its business. The combined company may be unable to replace key members of its management team and key employees if it loses their services. Integrating new employees into the combined company’s team could prove disruptive to the combined company’s operations, require substantial resources and management attention and ultimately prove unsuccessful. An inability to attract and retain sufficient managerial personnel who have critical industry experience and relationships could limit or delay the combined company’s strategic efforts, which could have a material adverse effect on its business, financial condition and results of operations.

 

The combined company’s inability to protect its intellectual property could adversely affect its business. The combined company may also be subject to intellectual property rights claims by third parties, which are extremely costly to defend, could require it to pay significant damages and could limit its ability to use certain technologies.

 

Any failure to protect the combined company’s proprietary rights adequately could result in its competitors offering similar residential solar technology more quickly than anticipated, potentially resulting in the loss of some of its competitive advantage and a decrease in its revenue that would adversely affect its business prospects, financial condition and operating results. The combined company’s success depends, at least in part, on its ability to protect its core technology and intellectual property. The combined company will rely on intellectual property laws, primarily a combination of copyright and trade secret laws in the U.S., as well as license agreements and other contractual provisions, to protect its proprietary technology and brand. The combined company cannot be certain its agreements and other contractual provisions will not be breached, including a breach involving the use or disclosure of its trade secrets or know-how, or that adequate remedies will be available in the event of any breach. In addition, the combined company’s trade secrets may otherwise become known or lose trade secret protection.

 

The combined company cannot be certain its products and its business do not or will not violate the intellectual property rights of a third party. Third parties, including the combined company’s competitors, may own patents or other intellectual property rights that cover aspects of its technology or business methods. Such parties may claim the combined company has misappropriated, misused, violated or infringed third-party intellectual property rights and if it gains greater recognition in the market, it faces a higher risk of being the subject of claims it has violated others’ intellectual property rights. Any claim the combined company has violated a third party’s intellectual property rights, whether with or without merit, could be time-consuming, expensive to settle or litigate and could divert its management’s attention and other resources, all of which could adversely affect its business, results of operations, financial condition and cash flows. If the combined company does not successfully settle or defend an intellectual property claim, it could be liable for significant monetary damages and could be prohibited from continuing to use certain technology, business methods, content or brands. To avoid a prohibition, the combined company could seek a license from third parties, which could require it to pay significant royalties, increasing its operating expenses. If a license is not available at all or not available on commercially reasonable terms, the combined company may be required to develop or license a non-violating alternative, either of which could adversely affect its business, results of operations, financial condition and cash flows.

 

The combined company may be subject to interruptions or failures in its information technology systems.

 

The combined company will rely on information technology systems and infrastructure to support its business. Any of these systems may be susceptible to damage or interruption due to fire, floods, power loss, telecommunication failures, usage errors by employees, computer viruses, cyberattacks or other security breaches or similar events. A compromise of the combined company’s information technology systems or those with which it interacts could harm its reputation and expose it to regulatory actions and claims from customers and other persons, any of which could adversely affect its business, financial condition, cash flows and results of operations. If the combined company’s information systems are damaged, fail to work properly or otherwise become unavailable, it may incur substantial 

 

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costs to repair or replace them and it may experience a loss of critical information, customer disruption and interruptions or delays in its ability to perform essential functions.

 

The combined company may become involved in the future in legal proceedings that could adversely affect its business.

 

The combined company may, from time to time, be involved in litigation and claims, such as those relating to employees, customers or other third parties with whom it contracts, including consumer claims and class action lawsuits. In the ordinary course of business, the combined company has disputes with customers. In general, litigation claims or regulatory proceedings can be expensive and time consuming to bring or defend against, may result in the diversion of management attention and resources from the combined company’s business and business goals and could result in injunctions or other equitable relief, settlements, penalties, fines or damages that could significantly affect its results of operations and the conduct of its business. It is impossible to predict with certainty whether any resulting liability would have a material adverse effect on the combined company’s financial position, results of operations or cash flows.

 

The combined company’s information technology systems may be exposed to various cybersecurity risks and other disruptions that could impair its ability to operate, adversely affect its business, and damage its brand and reputation.

 

The combined company will rely extensively on its information technology systems or on third parties for services including its enterprise resource planning (“ERP”) system, banking, payroll, shipping, and e-mail systems to conduct business. The combined company also collects, stores and transmits sensitive data, including proprietary business information and personally identifiable information of its customers, suppliers and employees.

 

Despite the combined company’s information technology systems and data security program, the implementation of security measures to protect its data and infrastructure against breaches and other cyber threats, and its use of internal processes and controls designed to protect the security and availability of its systems, its information technology and communication systems may be vulnerable to cybersecurity risks such as computer viruses, hacking, malware, denial of service attacks, cyber terrorism, circumvention of security systems, malfeasance, breaches due to employee error, natural disasters, telecommunications failure, at its facilities or at third-party locations.

 

Complying with the varying cybersecurity and data privacy regulatory requirements could cause the combined company to incur substantial costs or require it to change its business practices in a manner adverse to its business. Any failure, or perceived failure, by the combined company to comply with any regulatory requirements or international privacy or consumer protection-related laws and regulations could result in proceedings or actions against it by governmental entities or others, subject it to significant penalties and negative publicity and adversely affect us. In addition, as noted above, the combined company is subject to the possibility of security breaches, which themselves may result in a violation of these laws. 

 

Any failure, breach or unauthorized access to the combined company’s or third-party systems could result in the loss of confidential, sensitive or proprietary information, interruptions in its service or production or otherwise its ability to conduct business operations, and could result in potential reductions in revenue and profits, damage to its reputation or liability. Given that the combined company will receive, store and use personal information of its customers, including names, addresses, e-mail addresses, credit information, credit card and financial account information and other housing and energy use information, this risk is amplified. There can be no assurance that the combined company’s protective measures will prevent or timely detect security breaches that could have a significant impact on its business, reputation, operating results and financial condition.

 

If a cyberattack or other security incident were to allow unauthorized access to or modification of the combined company’s customers’ data or its own data, whether due to a failure with its systems or related systems operated by third parties, it could suffer damage to its brand and reputation. The costs the combined company would incur to address and fix these incidents would increase its expenses. These types of security incidents could also lead to lawsuits, regulatory investigations and increased legal liability, including in some cases contractual costs related to customer notification and fraud monitoring. Further, as regulatory focus on privacy and data security issues continues to increase and worldwide laws and regulations concerning the protection of information become more complex, the potential risks and costs of compliance to the combined company’s business will intensify.

 

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Terrorist or cyberattacks against centralized utilities could adversely affect the combined company’s business.

 

Assets owned by utilities such as substations and related infrastructure have been physically attacked in the past and will likely be attacked in the future. These facilities are often protected by limited security measures, such as perimeter fencing. Any such attacks may result in interruption to electricity flowing on the grid and consequently could interrupt service to the combined company’s solar energy systems, which could adversely affect its operations. Furthermore, cyberattacks, whether by individuals or nation states, against utility companies could severely disrupt their business operations and result in loss of service to customers, which would adversely affect the combined company’s operations. For example, a recent ransomware attack on the owners of the Colonial Pipeline system forced a shutdown of its operations for multiple days, requiring significant capital outlays and concerns by customers and regulators of the reliability of the electricity provision. In the event the combined company was plagued by similar cyberattacks, customers could choose other sources for electricity, which would adversely affect the combined company’s operations. Increased cyberattacks generally may also materially increase the combined company’s defense costs, which would adversely impact our profitability.

 

The ongoing COVID-19 pandemic could adversely affect the combined company’s business, financial condition and results of operations.

 

The ongoing COVID-19 pandemic continues to be a rapidly evolving situation, including due to the recent surge in COVID-19 variants such as the Delta variant. The COVID-19 pandemic and efforts to respond to it have resulted in and may continue to result in widespread adverse impacts on the global economy. If there are additional outbreaks of the COVID-19 virus or other viruses or more stringent health and safety guidelines are adopted, the combined company’s ability to perform installations and service calls may be adversely impacted. A significant or extended decline in new contract origination may have a material adverse effect on the combined company’s business, cash flows, liquidity, financial condition and results of operations.

 

The combined company cannot predict the full impact the COVID-19 pandemic or the significant disruption and volatility currently being experienced in the capital markets will have on its business, cash flows, liquidity, financial condition and results of operations at this time due to numerous uncertainties. The ultimate impact will depend on future developments, including, among other things, the ultimate duration of the COVID-19 virus, the distribution, acceptance and efficacy of the vaccine, the depth and duration of the economic downturn and other economic effects of the COVID-19 pandemic, the consequences of governmental and other measures designed to prevent the spread of the COVID-19 virus, actions taken by governmental authorities, customers and other third parties, the combined ability and the ability of customers and potential customers to adapt to operating in a changed environment and the timing and extent to which normal economic and operating conditions resume.

 

Combined Company Regulatory Risks

 

The combined company will not be regulated as an electric public utility under applicable law, but may be subject to regulation as an electric utility in the future.

 

Immediately following the closing of the merger, the combined company will not be regulated as an electric public utility in the U.S. under applicable national, state or other local regulatory regimes where it conducts business. As a result, the combined company will not be subject to the various federal, state and local standards, restrictions and regulatory requirements applicable to centralized public utilities. Any federal, state or local law or regulations that cause the combined company to be treated as an electric utility or to otherwise be subject to a similar regulatory regime of commission-approved operating tariffs, rate limitations and related mandatory provisions, could place significant restrictions on its ability to operate its business and execute its business plan by prohibiting, restricting or otherwise regulating its sale of electricity. If the combined company were subject to the same state or federal regulatory authorities as centralized electric utilities in the U.S. and its territories or if new regulatory bodies were established to oversee its business in the U.S. and its territories or in foreign markets it enters, its operating costs would materially increase or it might have to change its business in ways that could have a material adverse effect on its business, financial condition and results of operations.

 

Electric utility policies and regulations, including those affecting electric rates, may present regulatory and economic barriers to the purchase and use of solar energy systems that may significantly reduce demand for

 

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electricity from the combined company’s solar energy systems and adversely impact its ability to originate new solar service agreements.

 

Federal, state and local government regulations and policies concerning the electric utility industry, utility rates and rate structures and internal policies and regulations promulgated by electric utilities, heavily influence the market for electricity generation products and services. These regulations and policies often relate to electricity pricing. Policies and regulations that promote renewable energy and distributed energy generation have been challenged by centralized electric utilities and questioned by those in government and others arguing for less governmental spending and involvement in the energy market. To the extent such views are reflected in government policies and regulations, the changes in such policies and regulations could adversely affect the combined company’s business, financial condition and results of operations. Furthermore, any effort to overturn federal and state laws, regulations or policies that are supportive of solar energy generation or that remove costs or other limitations on other types of energy generation that compete with solar energy projects could materially and adversely affect the combined company’s business.

 

The combined company will rely on net metering and related policies to offer competitive pricing to its customers in most of its current markets and changes to policies governing net metering may significantly reduce demand for electricity from residential solar energy systems.

 

Net metering is one of several key policies that have enabled the growth of distributed generation solar energy systems in the U.S., providing significant value to customers for electricity generated by their residential solar energy systems, but not directly consumed on-site. Net metering allows a homeowner to pay his or her local electric utility for power usage net of production from the solar energy system or other distributed generation source. Homeowners receive a credit for the energy an interconnected solar energy system generates in excess of that needed by the home to offset energy purchases from the centralized utility made at times when the solar energy system is not generating sufficient energy to meet the customer’s demand. In many markets, this credit is equal to the residential retail rate for electricity and in other markets, such as Hawaii, where the rate is less than the retail rate and may be set, for example, as a percentage of the retail rate or based upon a valuation of the excess electricity. In some states and utility territories, customers are also reimbursed by the centralized electric utility for net excess generation on a periodic basis.

 

Net metering programs have been subject to legislative and regulatory scrutiny in certain states and territories. These jurisdictions, by statute, regulation, administrative order or a combination thereof, have recently adopted or are considering new restrictions and additional changes to net metering programs either on a state-wide basis or within specific utility territories. Many of these measures were introduced and supported by centralized electric utilities. These measures vary by jurisdiction and may include a reduction in the rates or value of the credits customers are paid or receive for the power they deliver back to the electrical grid, caps or limits on the aggregate installed capacity of generation in a state or utility territory eligible for net metering, expiration dates for and phasing out of net metering programs, replacement of net metering programs with alternative programs that may provide less compensation and limits on the capacity size of individual distributed generation systems that can qualify for net metering. Net metering and related policies concerning distributed generation also received attention from federal legislators and regulators.

 

If net metering caps in certain jurisdictions are reached while they are still in effect, if the value of the credit that customers receive for net metering is significantly reduced, if net metering is discontinued or replaced by a different regime that values solar energy at a lower rate or if other limits or restrictions on net metering are imposed, current and future customers may be unable to recognize the same level of cost savings associated with net metering. The absence of favorable net metering policies or of net metering entirely, or the imposition of new charges that only or disproportionately impact customers that use net metering would likely significantly limit customer demand for distributed residential solar energy systems and the electricity they generate and result in an increased rate of defaults, terminations or cancelations under customer agreements. The combined company’s ability to lease, finance and sell its solar energy systems and services or sell the electricity generated from its solar energy systems may be adversely impacted by the failure to expand existing limits on the amount of net metering in states that have implemented it, the failure to adopt a net metering policy where it currently is not in place or reductions in the amount or value of credit customers receive through net metering. This could adversely impact the combined company’s ability to expand its portfolio of solar service agreements and related solar energy systems, its business, financial condition and results of operations.

 

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Additionally, distributed residential solar customers in certain jurisdictions may be subject to higher charges from centralized electric utilities than non-solar customers and such charges should be evaluated together with the net metering policies in place. If such charges are imposed, the cost savings associated with switching to solar energy may be significantly reduced and the combined company’s ability to expand its portfolio of solar service agreements and related solar energy systems and compete with centralized electric utilities could be impacted.

 

The combined company’s business will depend in part on the availability of rebates, tax credits and other financial incentives. The expiration, elimination or reduction of these rebates, credits or incentives or its ability to monetize them could adversely impact its business.

 

The combined company’s business will depend in part on current government policies that promote and support solar energy and enhance the economic viability of distributed residential solar. U.S. federal, state and local governments established various incentives and financial mechanisms to reduce the cost of solar energy and to accelerate the adoption of solar energy. These incentives come in various forms, including rebates, tax credits and other financial incentives such as payments for renewable energy credits associated with renewable energy generation, exclusion of solar energy systems from property tax assessments or other taxes and system performance payments. However, these programs may expire on a particular date, end when the allocated funding is exhausted or be reduced or terminated as solar energy adoption rates increase. The value of SRECs in a market tends to decrease over time as the supply of SREC-producing solar energy systems installed in that market increases. If the combined company overestimates the future value of these incentives, it could adversely impact its business, results of operations and financial results. See “Business-Government Incentives.”

 

A loss or reduction in such incentives could decrease the attractiveness of new solar energy systems to customers, which could adversely impact the combined company’s business and its access to capital. The economics of purchasing a solar energy system are also improved by eligibility for accelerated depreciation, also known as the modified accelerated cost recovery system (“MACRS”), which allows for the depreciation of equipment according to an accelerated schedule set forth by the IRS. This accelerated schedule allows a taxpayer to recognize the depreciation of tangible solar property on a five-year basis even though the useful life of such property is generally greater than five years. To the extent these policies are changed in a manner that reduces the incentives that benefit the combined company’s business, it may experience reduced revenues and reduced economic returns, experience increased financing costs and encounter difficulty obtaining financing.

 

Applicable authorities may adjust or decrease incentives from time to time or include provisions for minimum domestic content requirements or other requirements to qualify for these incentives. Reductions in, eliminations or expirations of or additional application requirements for governmental incentives could adversely impact its results of operations and ability to compete in the combined company’s industry by increasing its cost of capital, causing distributed residential solar power companies to increase the prices of their energy and solar energy systems and reducing the size of its addressable market. In addition, this would adversely impact the combined company’s ability to attract investment partners and lenders and its ability to expand its portfolio of solar service agreements and related solar energy systems.

 

Technical and regulatory limitations regarding the interconnection of solar energy systems to the electrical grid may significantly reduce the combined company’s ability to sell electricity from its solar energy systems in certain markets or delay interconnections and customer in-service dates, harming its growth rate and customer satisfaction.

 

Technical and regulatory limitations regarding the interconnection of solar energy systems to the electrical grid may curb or slow the combined company’s growth in key markets. Utilities throughout the country follow different rules and regulations regarding interconnection and regulators or utilities have or could cap or limit the amount of solar energy that can be interconnected to the grid. The combined company’s solar energy systems generally do not provide power to homeowners until they are interconnected to the grid.

 

With regard to interconnection limits, the FERC, in promulgating the first form of small generator interconnection procedures, recommended limiting customer-sited intermittent generation resources, such as the combined company’s solar energy systems, to a certain percentage of peak load on a given electrical feeder circuit. Similar limits have been adopted by many states as a de facto standard and could constrain the combined company’s ability to market to customers in certain geographic areas where the concentration of solar installations exceeds this limit.

 

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Furthermore, in certain areas, the combined company benefits from policies that allow for expedited or simplified procedures related to connecting solar energy systems to the electrical grid. The combined company also is required to obtain interconnection permission for each solar energy system from the local utility. In many states and territories, by statute, regulations or administrative order, there are standardized procedures for interconnecting distributed residential solar energy systems to the electric utility’s local distribution system. However, approval from the local utility could be delayed as a result of a backlog of requests for interconnection or the local utility could seek to limit the number of customer interconnections or the amount of solar energy on the grid. In some states, certain utilities such as municipal utilities or electric cooperatives are exempt from certain interconnection requirements. If expedited or simplified interconnection procedures are changed or cease to be available, if interconnection approvals from the local utility are delayed or if the local utility seeks to limit interconnections, this could decrease the attractiveness of new solar energy systems to distributed residential solar power companies, including us, and the attractiveness of solar energy systems to customers. Delays in interconnections could also harm the combined company’s growth rate and customer satisfaction scores. Such limitations or delays could also adversely impact the combined company’s access to capital and reduce its willingness to pursue solar energy systems due to higher operating costs or lower revenues from solar service agreements. Such limitations would negatively impact the combined company’s business, results of operations, future growth and cash flows. 

 

As adoption of solar distributed generation rises, along with the increased operation of utility-scale solar generation (such as in key markets including California), the amount of solar energy being contributed to the electrical grid may surpass the capacity anticipated to be needed to meet aggregate demand. Some centralized public utilities claim in less than five years, solar generation resources may reach a level capable of producing an over-generation situation, which may require some existing solar generation resources to be curtailed to maintain operation of the electrical grid. In the event such an over-generation situation were to occur, this could also result in a prohibition on the addition of new solar generation resources. The adverse effects of such a curtailment or prohibition without compensation could adversely impact the combined company’s business, results of operations, future growth and cash flows.

 

Compliance with occupational safety and health requirements and best practices can be costly and noncompliance with such requirements may result in potentially significant monetary penalties, operational delays and adverse publicity.

 

The installation and ongoing operations and maintenance of solar energy systems requires individuals hired by the combined company or third-party contractors, potentially including the combined company’s employees, to work at heights with complicated and potentially dangerous electrical systems. The evaluation and modification of buildings as part of the installation process requires these individuals to work in locations that may contain potentially dangerous levels of asbestos, lead, mold or other materials known or believed to be hazardous to human health. There is substantial risk of serious injury or death if proper safety procedures are not followed. The combined company’s operations are subject to regulation under OSHA, DOT regulations and equivalent state and local laws. Changes to OSHA or DOT requirements, or stricter interpretation or enforcement of existing laws or regulations, could result in increased costs. If the combined company fails to comply with applicable OSHA or DOT regulations, even if no work-related serious injury or death occurs, it may be subject to civil or criminal enforcement and be required to pay substantial penalties, incur significant capital expenditures or suspend or limit operations. Individuals hired by or on behalf of the combined company may have workplace accidents and receive citations from OSHA regulators for alleged safety violations, resulting in fines. Any such accidents, citations, violations, injuries or failure to comply with industry best practices may subject the combined company to adverse publicity, damage its reputation and competitive position and adversely affect its business.

 

Risks Related to the Combined Company’s Common Stock

 

The combined company does not intend to pay cash dividends on its common stock and, consequently, your only opportunity to achieve a return on your investment in the combined company is if the price of its common stock appreciates.

 

The combined company does not plan to declare dividends on shares of its common stock in the foreseeable future. Consequently, if the Pineapple Merger Transaction is consummated, your opportunity to achieve a return on the shares of the combined company you own after the merger will be if you sell your common stock. In addition, CSI shareholders of record as of the close of the business day immediately preceding the closing of the merger will 

 

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receive CVRs and as a CVR holder, will be entitled to payments in respect of such CVRs when, as and if such payments are made in accordance with the terms of the CVR agreement. CVR holders are not entitled, as such, to participate in dividends, if any, of the combined company.

 

There is no guarantee the price of the combined company’s common stock that will prevail in the market will ever exceed the price you paid for it or otherwise achieve a price that represents an attractive return on your investment in the combined company.

 

The ownership of the combined company common stock is expected to be highly concentrated, which may prevent you and other shareholders from influencing significant corporate decisions.

 

Pineapple member, Lake Street Solar LLC, is expected to beneficially own approximately 29.8% of the outstanding shares of the combined company common stock following the closing of the merger. Accordingly, these combined company shareholders will have substantial influence over the outcome of corporate actions requiring shareholder approval, including the election of directors, any merger, consolidation or sale of all or substantially all of the combined company assets or any other significant corporate transactions. These shareholders may also delay or prevent a change of control of the combined company, even if such a change of control would benefit the other shareholders of the combined company.

 

The price of the combined company’s common stock may be volatile and may decline in value.

 

The market price of the combined company’s common stock may be influenced by many factors, some of which are beyond its control, including:

 

 

public reaction to the combined company’s press releases, announcements and filings with the SEC;

 

 

the combined company’s operating and financial performance;

 

 

fluctuations in broader securities market prices and volumes, particularly among securities of technology and solar companies;

 

 

changes in market valuations of similar companies;

 

 

departures of key personnel;

 

 

commencement of or involvement in litigation;

 

 

variations in the combined company’s quarterly results of operations or those of other technology and solar companies;

 

 

changes in general economic conditions, financial markets or the technology and solar industries;

 

 

announcements by the combined company or its competitors of significant acquisitions or other transactions;

 

 

changes in accounting standards, policies, guidance, interpretations or principles;

 

 

speculation in the press or investment community;

 

 

actions by the combined company’s shareholders;

 

 

the failure of securities analysts to cover the combined company’s common stock or changes in their recommendations and estimates of its financial performance;

 

 

future sales of the combined company’s common stock; and

 

 

the other factors described in these “Risk Factors”.

 

Future sales of combined company shares could cause the combined company’s stock price to decline.

 

If existing shareholders of CSI or future shareholders of the combined company, including those who acquire CSI common stock in the merger or the PIPE Offering, sell, or indicate an intention to sell, substantial amounts of the combined company’s common stock in the public market after the merger, the trading price of the common stock of

 

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the combined company could decline. All of shares of CSI common stock issued in the merger and all of the shares of CSI common stock that may be issued in connection with the PIPE Offering will be freely tradable, without restriction, in the public market. Additionally, all shares of CSI common stock outstanding prior to the merger will be freely tradable, without restriction, in the public market except that the PIPE Offering requires 30-day lock-up agreements of CSI common stock by certain combined company officers, directors and major shareholders following the closing.

 

In addition, upon exercise of the CSI Series A convertible preferred stock and common stock warrants issued in the PIPE Offering or the issuance of the Earnout Consideration, the number of shares outstanding of the combined company’s common stock could increase substantially. Dilution and potential dilution, the availability of a large number of shares for sale, and the possibility of additional issuances and sales of the combined company’s common stock may negatively affect both the trading price and liquidity of the combined company’s common stock.

 

If the combined company fails to put in place appropriate and effective internal control over financial reporting, it may suffer harm to its reputation and investor confidence levels.

 

As a privately held company, Pineapple was not required to implement or maintain a system of internal control over financial reporting or evaluate its internal control over financial reporting in a manner that meets the standards of publicly traded companies required by Section 404 of the Sarbanes-Oxley Act. As a public company, the combined company has significant requirements for enhanced financial reporting and internal controls as compared to Pineapple.

 

The process of designing and implementing and maintaining effective internal controls for the Pineapple, HEC and E-Gear businesses is expected to require significant resources of the combined company. If the combined company is unable to establish or maintain appropriate internal financial controls and procedures, it could cause the combined company to fail to meet its reporting obligations on a timely basis, result in material misstatements in its consolidated financial statements, and harm its operating results. In addition, the process for designing and implementing and maintaining an effective internal control environment for the combined company will divert management’s attention from revenue generating or other important business activities.

 

In connection with the implementation of the necessary procedures and practices related to internal control over financial reporting, the combined company may identify deficiencies and may encounter problems or delays in completing the remediation of any deficiencies. The existence of deficiencies in internal control over financial reporting may require management to devote significant time and incur significant expense to remediate any such deficiencies.

 

If the combined company fails to design and implement and maintain effective internal controls over financial reporting for the Pineapple, HEC and E-Gear businesses in the required timeframe, it may be subject to sanctions or investigations by regulatory authorities, including the SEC and Nasdaq. Furthermore, if the combined company is unable to conclude that its internal controls over financial reporting are effective, it could lose investor confidence in the accuracy and completeness of its financial reports, the market price of the combined company’s securities could decline, and it could be subject to sanctions or investigations by regulatory authorities. Failure to implement or maintain effective internal control over financial reporting and disclosure controls and procedures required of public companies could also restrict the combined company’s future access to the capital markets.

 

50 

 

 

CAUTION CONCERNING FORWARD-LOOKING STATEMENTS

 

This proxy statement/prospectus contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are based on management’s current expectations and assumptions about future events, which are inherently subject to uncertainties, risks and changes in circumstances that are difficult to predict. The use of words such as “anticipates,” “estimates,” “expects,” “projects,” “intends,” “plans” and “believes,” among others, generally identifies forward-looking statements.

 

Actual results could differ materially from those contained in the forward-looking statements. Factors currently known to management that could cause actual results to differ materially from those in forward-looking statements include those set forth under “RISK FACTORS” beginning on page 28, as well as the risk factors about our company included as part of our Annual Report on Form 10-K for the year ended December 31, 2020. See “WHERE YOU CAN FIND ADDITIONAL INFORMATION” on page 222.

 

Other unknown or unpredictable factors may arise from time to time that could also adversely affect the Pineapple Merger Transaction, the PIPE Offering, the CVRs, CSI’s ongoing efforts to divest substantially all our current operating and non-operating assets, or the CSI, Pineapple or combined company respective business, financial condition and results of operations. In light of these risks and uncertainties, the forward-looking statements discussed in this proxy statement/prospectus may not prove to be accurate. Accordingly, you should not place undue reliance on these forward-looking statements, which only reflect the views of CSI or Pineapple management, respectively, as of the date of this proxy statement/prospectus. Except as required by applicable law, neither CSI nor Pineapple undertakes any obligation to update or revise forward-looking statements to reflect changed assumptions, the occurrence of unanticipated events or changes to future operating results or expectations.

 

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THE PARTIES

 

Communications Systems, Inc.

 

Communications Systems, Inc. is a Minnesota corporation that was organized in 1969. Until August 2, 2021, CSI classified its businesses into the following two segments:

 

 

Electronics & Software (E&S): designs, develops and sells Intelligent Edge solutions that provide connectivity and power through Power over Ethernet (“PoE”) products and actionable intelligence to end devices in an Internet of Things (“IoT”) ecosystem through embedded and cloud-based management software. In addition, this segment generates revenue from its traditional products consisting of media converters, NICs, and Ethernet switches that offer the ability to affordably integrate the benefits of fiber optics into any data network; and

 

 

Services & Support (S&S): provides SD-WAN and other technology solutions that address prevalent IT challenges, including network resiliency, security products and services, network virtualization, and cloud migrations, IT managed services, wired and wireless network design and implementation, and converged infrastructure configuration, deployment and management.

 

At the time the proposed merger was announced on March 2, 2021, CSI stated its intention to divest substantially all its current operating and non-operating assets, including its E&S Segment business, its S&S Segment business, real estate holdings, and cash, cash equivalents, and investments. Consistent with that announcement, CSI entered into a securities purchase agreement dated April 28, 2021 with Lantronix, Inc. pursuant to which CSI agreed to sell all of the issued and outstanding stock of its wholly owned subsidiary, Transition Networks, Inc., and the entire issued share capital of its wholly owned subsidiary, Transition Networks Europe Limited. These two subsidiaries operated the Transition Networks and Net2Edge Limited businesses that constitute the E&S Segment, and we refer to the sale of these subsidiaries as the “E&S Sale Transaction.” On August 2, 2021, CSI and Lantronix, Inc. closed the E&S Sale Transaction and, as a result, CSI disposed of its E&S Segment business as of that date.

 

Our mailing address is 10900 Red Circle Drive, Minnetonka, MN 55343, and the telephone number at that location is (952) 996-1674. Our principal website is www.commsystems.com.

 

Helios Merger Co.

 

Helios Merger Co., also referred to as “Merger Sub,” is a wholly-owned subsidiary of CSI. Merger Sub was formed as a Delaware corporation on February 26, 2021. Merger Sub was formed to consummate the merger. Following the consummation of the merger, Merger Sub will have merged with and into Pineapple, with Pineapple surviving the merger as a wholly owned subsidiary of CSI.

 

Pineapple Energy LLC

 

Pineapple Energy LLC is a Delaware limited liability company formed on December 1, 2020. Pineapple was founded to acquire and grow leading local and regional solar, storage, and energy services companies nationwide. Pineapple’s vision is to power the energy transition through grass-roots growth of solar electricity paired with battery storage on consumers’ homes. Pineapple puts the customer at the heart of everything it does, building long-term relationships to create and share in recurring revenue from the electric grid of the future. Pineapple’s cornerstone acquisitions of certain assets of Sungevity and Horizon Solar Power in December 2020 provide Pineapple with a well-known brand name and access to a database with both historical existing buyers and 115,000 unconverted Sungevity leads, dating back to January 2019.

 

On March 1, 2021, Pineapple signed an asset purchase agreement to acquire two leading sustainable energy service and technology providers in Hawaii: Hawaii Energy Connection, LLC (“HEC”) and E-Gear, LLC (“E-Gear”). These acquisitions are anticipated to close immediately prior to the closing of the Pineapple Merger Transaction. HEC is a leading sustainable energy provider, with over 9,000 residential systems installed and growing. E-Gear operates as a technology developer and manufacturer of energy management software and hardware in Hawaii. The HEC and E-Gear acquisitions, also called the Pre-Closing Acquisition, are intended to establish Pineapple’s presence in the United States’ most solar-friendly region, as approximately 30% of Hawaiian homes are powered by solar.

 

The mailing address for Pineapple is 315 East Lake Street, Suite 301, Wayzata, Minnesota 55391 and the telephone number at that location is (952) 582-6460. The principal website for Pineapple is www.pineappleenergy.com.

 

52 

 

 

ABOUT THE SPECIAL MEETING

 

Date, Time and Place

 

The special meeting of Communications Systems shareholders will be held on                , 2021 at 10:00 a.m. Central Time.

 

The special meeting will be online and a completely virtual meeting of shareholders due to the ongoing public health impact of the coronavirus (COVID-19) pandemic. This decision was made in light of the protocols that federal, state, and local governments have imposed or may impose in the near future and taking into account the health and safety of our shareholders, directors and members of management, as well as our desire to allow shareholders to participate in the special meeting wherever they may be located.

 

You may attend the online meeting via the internet by visiting: www.virtualshareholdermeeting.com/JCS2021SM2. You will need the 16-digit control number that is printed in the box marked by the arrow on your proxy card or on the voting instructions that accompanied your proxy materials. If you are a participant in the CSI ESOP, you may attend the special meeting as a guest by visiting the same website and logging in as a guest. If you are attending as a guest, you will not need a control number.

 

The virtual meeting platform is fully supported across browsers (Internet Explorer, Firefox, Chrome, and Safari) and devices (desktops, laptops, tablets, and cell phones) running the most updated version of applicable software and plugins. Participants should ensure that they have a strong internet connection wherever they intend to participate in the special meeting. Participants should also give themselves plenty of time to log in and ensure that they can hear streaming audio prior to the start of the special meeting. We recommend that you log in at least fifteen minutes before the special meeting.

 

Special Voting Information for ESOP Participants

 

If you hold shares of CSI common stock through the CSI Employee Stock Purchase Plan (ESOP), your voting instructions for these shares must be received by 11:59 p.m. Eastern Time on                , 2021. You may not vote the CSI shares allocated to you in the ESOP electronically during the special meeting.

 

Purposes of the Special Meeting

 

The purposes of the special meeting are:

 

 

1.

To approve the Agreement and Plan of Merger dated as of March 1, 2021, as amended (the “merger agreement”) by and among Communications Systems, Inc., Helios Merger Co., a wholly owned subsidiary of CSI (“Merger Sub”), Pineapple Energy LLC (“Pineapple”), Lake Street Solar LLC, as the Pineapple Members’ Representative (the “Members’ Representative”), and Randall D. Sampson, as the CSI Shareholders’ Representative (the “Shareholders’ Representative”) pursuant to which Merger Sub will merge with and into Pineapple with Pineapple surviving the merger as a wholly owned subsidiary of CSI. We refer to the transactions contemplated by the merger agreement as the “Pineapple Merger Transaction” and this proposal as the “Pineapple Merger Proposal.”

 

 

2.

To approve the issuance of shares of common stock of Communications Systems, Inc. in connection with the merger agreement. We refer to this proposal as the “Merger Issuance Proposal.”

 

 

3.

To approve the issuance of shares of common stock of Communications Systems, Inc. to investors in connection with the PIPE Offering (as defined herein). We refer to this proposal as the “PIPE Issuance Proposal.”

 

 

4.

To approve an amendment to the articles of incorporation of Communications Systems, Inc. to increase the authorized shares of common stock to 150 million. We refer to this proposal as the “Authorized Share Amendment Proposal.”

 

53 

 

 

 

5.

To approve an amendment to the articles of incorporation of Communications Systems, Inc. to eliminate Article IX relating to business combinations. We refer to this proposal as the “Article IX Amendment Proposal.”

 

 

6.

To approve a reverse stock split of the outstanding shares of CSI common stock, at a ratio within a range of 1-for-3 to 1-for-5, as determined by the CSI board of directors. We refer to this proposal as the “Reverse Stock Split Proposal.”

 

 

7.

To approve the Pineapple Holdings, Inc. 2021 Equity Incentive Plan. We refer to this proposal as the “2021 Equity Incentive Plan Proposal.”

 

 

8.

To approve, on an advisory, non-binding basis, certain compensation that has, will or may be paid or become payable to the Communications Systems, Inc. named executive officers in connection with the Pineapple Merger Transaction. We refer to this proposal as the “Advisory Compensation Proposal.”

 

 

9.

To approve the adjournment or postponement of the special meeting to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the Pineapple Merger Proposal, the Merger Issuance Proposal, the PIPE Issuance Proposal, the Authorized Share Amendment Proposal or the Reverse Stock Split Proposal. We refer to this proposal as the “Adjournment Proposal.”

 

Recommendation of CSI Board of Directors

 

The CSI board of directors unanimously recommends that the CSI shareholders vote FOR each of the proposals as presented in this proxy statement/prospectus:

 

 

Proposal #1: Pineapple Merger Proposal

 

 

Proposal #2: Merger Issuance Proposal

 

 

Proposal #3: PIPE Issuance Proposal

 

 

Proposal #4: Authorized Share Amendment Proposal

 

 

Proposal #5: Article IX Amendment Proposal

 

 

Proposal #6: Reverse Stock Split Proposal

 

 

Proposal #7: 2021 Equity Incentive Plan Proposal

 

 

Proposal #8: Advisory Compensation Proposal

 

 

Proposal #9: Adjournment Proposal

 

Record Date and Outstanding Shares

 

The CSI board of directors has fixed             , 2021, as the record date for the determination of shareholders entitled to notice of, and to vote at, the special meeting and any adjournment or postponement thereof. Only holders of record of shares of our common stock at the close of business on the record date are entitled to notice of, and to vote at, the special meeting. At the close of business on the record date, we had 9,720,627 shares of common stock outstanding and entitled to vote. Each share of CSI common stock entitles the holder thereof to one vote on each matter submitted for shareholder approval.

 

Casting and Revoking a Proxy

 

Whether or not you plan to attend the special meeting, you may vote your shares in advance of the special meeting by internet, telephone or signing and returning the enclosed proxy or other voting instruction form. If you hold your 

 

54 

 

 

shares in street name, then you received this proxy statement/prospectus from your broker, bank or nominee, along with a voting instruction card from your broker, bank or nominee. You will need to instruct your broker, bank or other nominee on how to vote your shares of common stock using the voting instructions provided.

 

Please note that if you hold shares of CSI common stock through the CSI Employee Stock Purchase Plan (ESOP), your voting instructions for these shares must be received by 11:59 p.m. Eastern Time on                , 2021. You may not vote the CSI common stock allocated to you through the ESOP electronically during the special meeting.

 

Except with respect to shares allocated to you as a participant in the CSI ESOP, you may vote your shares electronically during the special meeting. You will need the 16-digit control number included on your proxy card or on the voting instructions that accompanied your proxy materials. Please have your 16-digit control number readily available and log on to the special meeting by visiting www.virtualshareholdermeeting.com/JCS2021SM2 and entering your 16-digit control number. You may begin to log into the meeting platform beginning at 9:30 a.m. CT on                , 2021. The special meeting will begin promptly at 10:00 a.m. CT on                , 2021.

 

Even if you plan to attend the special meeting, we strongly encourage you to submit a proxy for your shares in advance as described above, so your vote will be counted if you are not able to attend.

 

All shares represented by properly executed proxies received in time for the special meeting will be voted in the manner specified by the shareholders giving those proxies.

 

If you are a shareholder of record, you may change your vote or revoke your proxy at any time before the vote at the special meeting by:

 

 

delivering to us a written notice, bearing a date later than your proxy, stating that you revoke the proxy;

 

 

submitting a properly signed proxy card or other voting instruction form with a later date;

 

 

submitting a new vote by telephone or through the internet prior to the close of the voting facilities; or

 

 

for shares other than those allocated to CSI ESOP participants, attending the special meeting and voting at the online special meeting (although attendance at the special meeting will not, by itself, revoke a proxy).

 

If your shares are held in street name, you must contact your broker, bank or nominee to revoke your proxy or vote at the special meeting.

 

Quorum; Required Vote for Each Matter

 

The presence, in person or represented by proxy, at the special meeting of the holders of a majority of the shares of CSI common stock outstanding and entitled to vote at the special meeting is necessary to constitute a quorum at the meeting. Abstentions and broker non-votes will be counted towards a quorum. For Proposals #1-#8, a quorum also must be present at the special meeting for the vote to be taken on those proposals.

 

 

Proposal #1: Pineapple Merger Proposal: The approval of the Pineapple Merger Proposal requires the affirmative vote of holders of at least two-thirds of the issued and outstanding shares of CSI common stock that are entitled to vote on this proposal. If you vote ABSTAIN on the Pineapple Merger Proposal, it will have the same effect as a vote against the Pineapple Merger Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have the same effect as a vote against the Pineapple Merger Proposal.

 

 

Proposal #2: Merger Issuance Proposal: The approval of the Merger Issuance Proposal requires the affirmative vote of holders of at least a majority of the shares of CSI common stock present at the special meeting and entitled to vote on this proposal. If you vote ABSTAIN on the Merger Issuance Proposal, it will have the same effect as a vote against the Merger Issuance Proposal. Except with 

 

55 

 

 

respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have no effect on the outcome of the Merger Issuance Proposal.

 

 

Proposal #3: PIPE Issuance Proposal: The approval of the PIPE Issuance Proposal requires the affirmative vote of holders of at least a majority of the shares of CSI common stock present at the special meeting and entitled to vote on this proposal. If you vote ABSTAIN on the PIPE Issuance Proposal, it will have the same effect as a vote against the PIPE Issuance Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have no effect on the outcome of the PIPE Issuance Proposal.

 

 

Proposal #4: Authorized Share Amendment Proposal: The approval of the Authorized Share Amendment Proposal requires the affirmative vote of holders of at least a majority of the issued and outstanding shares of CSI common stock that are entitled to vote on this proposal. If you vote ABSTAIN on the Authorized Share Amendment Proposal, it will have the same effect as a vote against the Authorized Share Amendment Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have the same effect as a vote against the Authorized Share Amendment Proposal.

 

 

Proposal #5: Article IX Amendment Proposal: The approval of the Article IX Amendment Proposal requires the affirmative vote of holders of at least 80% of the issued and outstanding shares of CSI common stock that are entitled to vote on this proposal. If you vote ABSTAIN on the Article IX Amendment Proposal, it will have the same effect as a vote against the Article IX Amendment Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have the same effect as a vote against the Article IX Amendment Proposal.

 

 

Proposal #6: Reverse Stock Split Proposal. The approval of the Reverse Stock Split Proposal requires the affirmative vote of holders of at least two-thirds of the issued and outstanding shares of CSI common stock that are entitled to vote on this proposal. If you vote ABSTAIN on the Reverse Stock Split Proposal, it will have the same effect as a vote against the Reverse Stock Split Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have the same effect as a vote against the Reverse Stock Split Proposal.

 

 

Proposal #7: 2021 Equity Incentive Plan Proposal: The approval of the 2021 Equity Incentive Plan Proposal requires the affirmative vote of holders of at least a majority of the shares of CSI common stock present at the special meeting and entitled to vote on this proposal. If you vote ABSTAIN on the 2021 Equity Incentive Plan Proposal, it will have the same effect as a vote against the 2021 Equity Incentive Plan Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have no effect on the outcome of the 2021 Equity Incentive Plan Proposal.

 

 

Proposal #8: Advisory Compensation Proposal: The approval, on an advisory, non-binding basis, of the Advisory Compensation Proposal requires the affirmative vote of holders of at least a majority of the shares of CSI common stock present at the special meeting and entitled to vote on this proposal. If you vote ABSTAIN on the Advisory Compensation Proposal, it will have the same effect as a vote against the Advisory Compensation Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have no effect on the outcome of the Advisory Compensation Proposal.

 

 

Proposal #9: Adjournment Proposal:  The approval of the Adjournment Proposal requires the affirmative vote of holders of at least a majority of the shares of CSI common stock present at the special meeting and entitled to vote on this proposal. If a quorum is not present at the special meeting and the Adjournment Proposal is approved, no other business may be transacted at the special meeting. If you vote ABSTAIN on the Adjournment Proposal, it will have the same effect as a vote against the Adjournment Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have no effect on the outcome of the Adjournment Proposal.

 

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If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP, your shares will be voted at the special meeting according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on each proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on that proposal.

 

Solicitation of Proxies

 

CSI is sending this proxy statement/prospectus to its shareholders in connection with the solicitation of proxies by the CSI board of directors for use at the CSI special meeting and any adjournments or postponements of the special meeting. This proxy statement/prospectus is first being furnished to shareholders of CSI on or about                , 2021. CSI will bear all expenses incurred in connection with the solicitation of proxies and printing, filing and mailing this proxy statement/prospectus.

 

Certain of CSI’s directors, officers and regular employees may solicit proxies personally or by telephone, letter, facsimile, or email. These directors, officers and employees will not be paid additional remuneration for their efforts but may be reimbursed for out-of-pocket expenses incurred in connection therewith. We will request brokers, custodians, nominees, and other record holders to forward copies of the proxy statement/prospectus and related soliciting materials to persons for whom they hold shares of our common stock and to request authority for the exercise of proxies. In such cases, upon the request of the record holders, we will reimburse such holders for their reasonable out-of-pocket expenses.

 

We have engaged The Proxy Advisory Group, LLC (“PAG”) to assist in the solicitation of proxies and provide related advice and information support, for a services fee and the reimbursement of customary disbursements, which are not expected to exceed $40,000 in total. CSI will be solely responsible for the costs of the solicitation.

 

Other Matters

 

Pursuant to our bylaws, the business transacted at all special meetings must be confined to the purposes stated in the notice of the special meeting. Accordingly, other than as stated in the notice of the special meeting, no other matters may properly come before the CSI shareholders and shareholder proposals cannot be submitted for the special meeting.

 

57 

 

 

OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF CSI

 

The following table sets forth, as of November 1, 2021, certain information with respect to the beneficial ownership of CSI’s common stock by (i) each shareholder known by us to be the beneficial owner of more than 5% of CSI’s common stock, (ii) each director of CSI, (iii) each of the named executive officers of CSI identified in the section “CSI EXECUTIVE COMPENSATION” of this proxy statement/prospectus, and (iv) all directors and executive officers of CSI as a group. Percentage ownership is based on 9,720,627 shares of CSI common stock outstanding as of November 1, 2021. Unless otherwise stated, the address of each person is 10900 Red Circle Drive, Minnetonka, MN 55343.

 

Pursuant to the voting agreement among Pineapple and each of Mark D. Fandrich, Anita Kumar, Roger H.D. Lacey, Richard A. Primuth, Randall D. Sampson, Steven C. Webster and Michael R. Zapata (collectively, the “CSI Holders”), each CSI Holder has agreed, with respect to all voting securities of CSI that such CSI Holder beneficially owns as of the date thereof or thereafter, to appear at the special meeting and vote in favor of the Pineapple Merger Proposal and the Merger Issuance Proposal and vote against any other shareholder action, agreement or transaction that is intended to or might adversely affect the consummation of the merger and related transactions, including any other acquisition proposal.

 

Name and Address of Beneficial Owner

 

Number of Shares
Beneficially Owned (1)

 

Percent of Outstanding

 

 

 

   

 

 

GAMCO Investors, Inc. (2)
   One Corporate Center
   Rye, NY 10580-1435

 

1,475,884

   

15.2%

 

 

 

 

   

 

 

Renaissance Technologies LLC (3)
   800 Third Avenue
   New York, NY 10022

 

630,018

   

6.5%

 

 

 

 

   

 

 

Punch & Associates Investment Management, Inc. (4)
   7701 France Ave. S., Suite 300
   Edina, MN 55435

 

490,491

   

5.0%

 

 

 

 

   

 

 

Communications Systems, Inc.
Employee Stock Ownership Plan and Trust (5)

 

628,370

   

6.5%

 

 

 

 

   

 

 

Roger H.D. Lacey (6)(7)

 

168,521

   

1.7%

 

 

 

 

   

 

 

Mark D. Fandrich (7)

 

69,943

   

*

 

 

 

 

   

 

 

Scott Fluegge (7)

 

61,017

   

*

 

 

 

 

   

 

 

Anita Kumar (7)(8)

 

29,486

   

*

 

 

 

 

   

 

 

Richard A. Primuth (6)

 

50,270

   

*

 

 

 

 

   

 

 

Randall D. Sampson (6)(9)

 

1,237,499

   

12.7%

 

 

 

 

   

 

 

Steven C. Webster (6)

 

25,819

   

*

 

 

 

 

   

 

 

Michael R. Zapata (6)

 

3,091

   

*

 

 

 

 

   

 

 

Scott Honour (10)

 

0

   

*

 

 

 

 

   

 

 

Kyle Udseth (10)

 

0

   

*

 

 

 

 

   

 

 

All current executive officers and directors as a group (9 persons)

 

1,659,354

   

17.1%

 

 

*             Less than one percent

 

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(1)

There are no options, restricted stock units or other rights outstanding to any of the CSI directors or executive officers as of November 1, 2021.

 

Includes the following number of shares allocated to the accounts of the following participants in the CSI Employee Stock Ownership Plan and Trust (ESOP) as of November 1, 2021: Mr. Lacey, 9,630 shares; Mr. Fandrich, 8,141 shares; Mr. Fluegge, 11,110 shares; Ms. Kumar, 7,331 shares; and all current directors and executive officers as a group, 45,629 shares.

 

(2)

Based on an Amendment No. 20 to Schedule 13D filed on September 16, 2021 in which the reporting persons disclose the following beneficial ownership as of September 14, 2021: Gabelli Funds, LLC, 297,200 shares sole voting and dispositive power; GAMCO Asset Management Inc., 804,924 shares sole voting power and dispositive power; Teton Advisors, Inc., 350,000 shares sole voting power and sole dispositive power; MJG Associates, Inc., 8,760 shares sole voting power and sole dispositive power; and Gabelli Foundation, Inc., 15,000 shares sole voting power and sole dispositive power.

 

(3)

Based on an Amendment No. 2 to Schedule 13G filed by Renaissance Technologies LLC on February 11, 2021 reporting sole voting power over 630,018 shares and sole dispositive power over 682,714 shares as of December 31, 2020.

 

(4)

Based on a Schedule 13G filed by Punch & Associates Investment Management, Inc. on February 17, 2021 reporting sole voting and sole dispositive power over 490,491 shares as of December 31, 2020.

 

(5)

Based on CSI records and an Amendment No. 7 to Schedule 13G filed by the CSI ESOP on February 12, 2021 reporting ownership as of December 31, 2020. Messrs. Roger H.D. Lacey, Randall D. Sampson and Mark D. Fandrich serve as Trustees of the CSI ESOP, and disclaim beneficial ownership of the shares held by the CSI ESOP, except for shares allocated to their respective accounts.

 

(6)

Currently serves as a director of Communications Systems.

 

(7)

Named executive officer of Communications Systems.

 

(8)

Ms. Kumar’s employment was terminated effective August 1, 2021 in connection with the closing of the E&S Sale Transaction.  Information based on Ms. Kumar’s Form 4 filed on August 5, 2021 and CSI records.

 

(9)

Based on a Schedule 13G filed on April 15, 2021 by Mr. Sampson reporting his beneficial ownership as of March 15, 2021, as well as CSI records. As of November 1, 2021, Mr. Sampson has or shares voting and dispositive power over: (i) 51,205 shares of common stock owned by Mr. Sampson individually; (ii) 25,349 shares of common stock owned jointly by Mr. Sampson and his spouse; (iii) 380,370 shares of common stock held by the Marian Arlis Sampson Revocable Trust, of which Mr. Sampson is the sole trustee; (iv) 37,722 shares of common stock held by the Marian Sampson IRA, of which Mr. Sampson is an attorney-in-fact authorized to act alone and Ms. Sampson retains authority to act on behalf of the Marian Sampson IRA; (v) 681,334 shares of common stock held by Sampson Family Real Estate Holdings, LLC, of which Mr. Sampson is the sole manager; and (vi) 61,519 shares of common stock held by the Sampson Family Foundation, a charitable foundation of which Mr. Sampson is one of five directors. The two officers of the Sampson Family Foundation have the authority to vote and dispose of the shares of common stock held by the Sampson Family Foundation. Mr. Sampson is not an officer of the Sampson Family Foundation. Mr. Sampson disclaims beneficial ownership of all of the shares of CSI common stock except those shares he holds individually or jointly with his spouse. Mr. Sampson is not a participant in the CSI ESOP.

 

(10)

Under the merger agreement, Messrs. Honour and Udseth will be elected as directors of the combined company as of the effective time.

 

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OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF PINEAPPLE

 

The following table sets for the beneficial ownership of units of Pineapple as of November 1, 2021 for:

 

 

each unitholder known by Pineapple to be the beneficial owner of more than 5% of its outstanding units;

 

each member of the Pineapple board of managers;

 

each Pineapple executive officer; and

 

all of the members of the Pineapple board of managers and executive officers as a group.

 

In accordance with the rules of the SEC, beneficial ownership includes voting or investment power with respect to securities and includes the shares issuable pursuant to options or other rights that are exercisable within 60 days of November 1, 2021. Shares issuable pursuant to options are deemed outstanding for computing the percentage of the person holding such options but are not outstanding for computing the percentage of any other person.

 

Except as otherwise indicated in the footnotes to this table the persons or entities named have sole voting and investment power with respect to all units shown as beneficially owned by them, and the address for each person or entity listed in the table is 315 East Lake Street, Wayzata, MN 55391:

 

Name of Beneficial Owner

Amount and Nature of
Beneficial Ownership

 

Percentage of Units
Beneficially Owned(1)

Greater than 5% Unitholders

 

   

 

 

Lake Street Solar LLC (2)

16,150,000

   

80.75%

 

Hercules Capital, Inc. (3)

3,000,000

   

15.00%

 

Managers and Named Executive Officers

 

   

 

 

Kyle Udseth (4)

850,000

   

4.25%

 

Scott Honour (5)

--

   

*

 

Managers and executive officers as a group (1 person)

850,000

   

4.25%

 

 

(1) Percentages are based upon 20,000,000 units outstanding as of November 1, 2021, which is comprised of 19,150,000 Class A Units and 850,000 Class P Units, each unit holding equal ownership rights, however, the Class P units hold no voting rights.

 

(2) Consists of 16,150,000 Class A units. Lake Street Solar LLC is the record owner of such units and Northern Pacific Group holds voting and investment control over Lake Street Solar LLC.

 

(3) Consists of 3,000,000 Class A units. The business address of Hercules Capital, Inc. is 400 Hamilton Avenue, Suite 310, Palo Alto, CA 94301.

 

(4) Consists of 850,000 Class P units, each of which holds no voting rights.

 

(5) Mr. Honour is a managing partner of Northern Pacific Group and disclaims beneficial ownership of the Pineapple units held by Lake Street Solar LLC.

 

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PROPOSAL #1:
PINEAPPLE MERGER PROPOSAL

 

Parties to the Merger Agreement

 

Communications Systems, Inc.

 

Communications Systems, Inc. is a Minnesota corporation that was organized in 1969. CSI classifies its businesses into the following two segments:

 

 

Electronics & Software (E&S): designs, develops and sells Intelligent Edge solutions that provide connectivity and power through Power over Ethernet (“PoE”) products and actionable intelligence to end devices in an Internet of Things (“IoT”) ecosystem through embedded and cloud-based management software. In addition, this segment continues to generate revenue from its traditional products consisting of media converters, NICs, and Ethernet switches that offer the ability to affordably integrate the benefits of fiber optics into any data network; and

 

 

Services & Support (S&S): provides SD-WAN and other technology solutions that address prevalent IT challenges, including network resiliency, security products and services, network virtualization, and cloud migrations, IT managed services, wired and wireless network design and implementation, and converged infrastructure configuration, deployment and management.

 

At the time the proposed merger was announced on March 2, 2021, CSI stated its intention to divest substantially all its current operating and non-operating assets, including its E&S Segment business, its S&S Segment business, real estate holdings, and cash, cash equivalents, and investments. Consistent with that announcement, CSI entered into a securities purchase agreement dated April 28, 2021 with Lantronix, Inc. pursuant to which CSI agreed to sell all of the issued and outstanding stock of its wholly owned subsidiary, Transition Networks, Inc., and the entire issued share capital of its wholly owned subsidiary, Transition Networks Europe Limited. These two subsidiaries operated the Transition Networks and Net2Edge Limited businesses that constitute the E&S Segment, and we refer to the sale of these subsidiaries as the “E&S Sale Transaction.” On August 2, 2021, CSI and Lantronix, Inc. closed the E&S Sale Transaction and, as a result, CSI disposed of its E&S Segment business as of that date.

 

Communications Systems’ headquarters and mailing address is 10900 Red Circle Drive, Minnetonka, MN 55343, and the telephone number at that location is (952) 996-1674. CSI’s principal website is www.commsystems.com.

 

Helios Merger Co.

 

Helios Merger Co., also referred to as “Merger Sub,” is a wholly-owned subsidiary of CSI. Merger Sub was formed as a Delaware corporation on February 26, 2021. Merger Sub was formed to consummate the merger. Following the consummation of the merger, Merger Sub will have merged with and into Pineapple, with Pineapple surviving the merger as a wholly owned subsidiary of CSI.

 

Pineapple Energy LLC

 

Pineapple Energy LLC is a Delaware limited liability company formed on December 1, 2020. Pineapple was founded to acquire and grow leading local and regional solar, storage, and energy services companies nationwide. Pineapple’s vision is to power the energy transition through grass-roots growth of solar electricity paired with battery storage on consumers’ homes. Pineapple puts the customer at the heart of everything it does, building long-term relationships to create and share in recurring revenue from the electric grid of the future. Pineapple’s cornerstone acquisitions of certain assets of Sungevity and Horizon Solar Power in December 2020 provide Pineapple with a well-known brand name and access to a database with both historical existing buyers and 115,000 unconverted Sungevity leads, dating back to January 2019.

 

On March 1, 2021, Pineapple signed an asset purchase agreement to acquire two leading sustainable energy service and technology providers in Hawaii: Hawaii Energy Connection, LLC (“HEC”) and E-Gear, LLC (“E-Gear”). These acquisitions are anticipated to close immediately prior to the closing of the Pineapple Merger Transaction. HEC is a leading sustainable energy provider, with over 9,000 residential systems installed and growing. E-Gear operates as a 

 

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technology developer and manufacturer of energy management software and hardware in Hawaii. The HEC and E-Gear acquisitions, also called the Pre-Closing Acquisition, are intended to establish Pineapple’s presence in the United States’ most solar-friendly region, as approximately 30% of Hawaiian homes are powered by solar.

 

The mailing address for Pineapple is 315 East Lake Street, Suite 301, Wayzata, Minnesota 55391 and the telephone number at that location is (952) 582-6460. The principal website for Pineapple is www.pineappleenergy.com.

 

Background of the Pineapple Merger Transaction

 

The CSI board of directors, together with CSI management, regularly reviews and assesses CSI’s performance, future growth prospects, business plans, competitive position, and overall strategic direction. As part of that review process, from time to time, the CSI board of directors has considered a number of strategic alternatives, including potential strategic transactions with third parties, in each case with the goal of maximizing shareholder value.

 

As part of this process, on May 23, 2018, the CSI board of directors announced the formation of a CSI special committee consisting of independent directors Richard Primuth, Randall D. Sampson and Steven Webster to explore strategic alternatives for CSI. CSI also announced that the CSI special committee expected to retain an investment banking firm to advise it in this process. CSI director Michael Zapata joined the special committee shortly following his election to the CSI board of directors in June 2020. In fulfilling its responsibilities to explore strategic alternatives, the CSI special committee, as well as the CSI board of directors, were advised by the law firm of Ballard Spahr LLP. On July 3, 2018, CSI engaged Northland Securities, Inc. (“Northland”) as its financial advisor to assist the CSI board of directors and CSI special committee in their identification and evaluation of strategic alternatives designed to enhance shareholder value.

 

The CSI special committee, working with members of management and Northland, studied a number of strategic initiatives and strategic alternatives for CSI, and, in the period from May 23, 2018 to December 2020, CSI took the following actions that were approved by the CSI special committee and the CSI board of directors:

 

 

On April 5, 2019, CSI’s subsidiary, Suttle, Inc., sold its FutureLink Fiber business line for $5.0 million in cash;

 

 

On March 11, 2020, CSI sold the remainder of its Suttle business and related assets for $8.0 million in cash;

 

 

On May 14, 2020, CSI acquired Ecessa Corporation in a reverse triangular merger for $4.6 million in cash; and

 

 

On November 3, 2020, CSI acquired the operating assets of privately held IVDesk Minnesota, Inc. from a third-party receiver appointed by a Hennepin County, Minnesota State District Court Judge for aggregate consideration of $1.4 million, including a $550,000 earnout payment made in March 2021.

 

During the period of May 2018 to December 2020, CSI executive chair Roger H.D. Lacey provided regular updates to the CSI special committee with his views, and the views of Northland, on options available to the CSI board of directors to increase shareholder value. Options discussed included acquiring similar businesses to grow through acquisition, divesting less strategic businesses, seeking a merger of equals, taking the company private, selling CSI as a whole in a single transaction, or an orderly sale of the Company’s subsidiary operations and real estate separately and distributing the sale proceeds to CSI’s shareholders (which the CSI board of directors sometimes described as “monetization”), or monetization of CSI’s assets combined with a merger transaction that would enable CSI to realize separate value from CSI’s public company reporting status and Nasdaq listing.

 

Despite efforts by CSI since May 2018 to identify and pursue strategic alternatives, the CSI board of directors did not receive any bona fide proposals to acquire CSI as a whole.

 

At a meeting on November 17, 2020, the CSI board of directors analyzed an initial five-year strategic plan presented by CSI management and assessed the strategic alternatives considered by the CSI board of directors in light of the initial five-year strategic plan. Based on feedback from the CSI Board of directors at that meeting, CSI management

 

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reviewed and updated the five-year strategic plan. At a meeting on December 8, 2020, the CSI board of directors analyzed a revised five-year strategic plan presented by CSI management and again considered alternative strategies to maximize shareholder value in light of the revised five-year strategic plan.

 

Following the review of the five-year strategic plan on November 17, 2020, the CSI board of directors came to believe that CSI’s businesses were unlikely to achieve significant growth in revenue and profitability unless the Company developed and successfully implemented a transformative plan that would involve additional investments in new product development and marketing and acquisitions that would complement CSI’s existing businesses. The CSI board of directors recognized, however, that implementing a transformative plan would present substantial financial, implementation and other risks.

 

Given these risks, and independent of early discussions with Pineapple Energy LLC (“Pineapple”) that are discussed below, the CSI board of directors began to give greater consideration to pursuing the strategy of monetizing CSI’s operating and non-operating assets and properties (sometimes referred to as “CSI legacy assets”) and exploring alternatives to realizing separate value from CSI’s public company reporting status and Nasdaq listing. The CSI board of directors believed that this separate monetization strategy offered greater potential for maximizing shareholder value as compared to other available strategic alternatives.

 

On December 8, 2020, a Northland representative contacted CSI executive chair Roger Lacey and chief financial officer Mark Fandrich regarding a possible transaction with Pineapple. Under the preliminary Pineapple proposal by Northland, CSI could deliver value to the CSI shareholders through a combination of (a) distribution of the net proceeds from the divestiture of CSI’s legacy assets and (b) the opportunity for CSI’s shareholders, through continued ownership of CSI common stock following a merger transaction, to participate in the potential growth of the combined company’s residential solar, battery storage, and grid services solutions business.

 

On December 10, 2020, several Northland representatives met via video with Messrs. Lacey and Fandrich to discuss the possible Pineapple transaction, specifically the concept of CSI entering into a merger transaction with Pineapple and the concept of distributing proceeds from the divestiture of CSI legacy assets after the merger by means of contingent value rights (“CVRs”) that would be issued to the shareholders of CSI immediately prior to the time the merger became effective.

 

On December 10, 2020, a Northland representative sent Messrs. Lacey and Fandrich a draft letter of intent (“LOI”) from Pineapple outlining the terms of a proposed merger between Pineapple and a subsidiary of CSI. Later on December 10, 2020, Messrs. Lacey and Fandrich, Northland representatives, Scott Honour of Northern Pacific Group (“NPG”), Kyle Udseth of Pineapple, and representatives of JMP Securities LLC (“JMP Securities”), financial advisor to Pineapple, held an introductory meeting via video. Messrs. Honour and Udseth provided a presentation to Messrs. Lacey and Fandrich consisting of a summary financial profile, investment highlights, industry overview, and description of Pineapple’s growth strategy. The group discussed the possible structure of the proposed merger transaction and the terms outlined in the LOI.

 

On December 12, 2020, Mr. Lacey contacted the CSI special committee to provide it with information regarding the merger being discussed with Northland and Pineapple. The CSI special committee was supportive of Messrs. Lacey and Fandrich continuing to evaluate the opportunity on behalf of CSI.

 

On December 13, 2020, Northland forwarded to Messrs. Lacey and Fandrich an updated draft of the LOI from Pineapple dated December 11, 2020. These terms included that CSI would issue to the Pineapple members as base merger consideration 18.6 million shares of CSI common stock (as compared to current outstanding CSI ownership of approximately 9.4 million shares), which would include CSI shares to be issued at closing relating to Pineapple’s proposed purchase of Hawaii Energy Connection, LLC (“HEC”) and E-Gear, LLC (“E-Gear”), plus two potential earnouts for the issuance of additional shares based on achieving specific post-closing share prices of the CSI stock. The December 11, 2020 LOI also proposed that, to provide an incentive for the post-merger CSI to maximize value of the CVR, the post-merger CSI would retain 10% of the net proceeds of each sale of legacy assets. In addition, the LOI stated that post-merger, CSI would be managed by Pineapple’s chief executive officer, Kyle Udseth, and CSI’s chief financial officer, Mark Fandrich. The LOI stated that the post-merger CSI board of directors would be comprised of seven directors, including two representatives from CSI, identified as Messrs. Lacey and Sampson, and

 

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two representatives from Pineapple, identified as Messrs. Udseth and Honor, and three additional directors to be agreed upon by CSI and Pineapple.

 

On December 14, 2020, Messrs. Honour and Udseth, along with representatives of JMP Securities, had an introductory meeting via video with the CSI special committee. This meeting was also attended by Messrs. Lacey and Fandrich and representatives of Northland. Messrs. Honour and Udseth provided a presentation to the CSI special committee consisting of a summary financial profile, investment highlights, industry overview, and description of Pineapple’s growth strategy. The group also reviewed and discussed the terms of the December 11, 2020 LOI. Following this meeting, the CSI special committee met separately with Messrs. Lacey and Fandrich and representatives of Northland to discuss the proposed LOI. The CSI special committee determined to hold a separate meeting the following day to continue review of the Pineapple opportunity.

 

On December 15, 2020, the CSI special committee met again with Messrs. Lacey and Fandrich to discuss the potential Pineapple transaction. Following that meeting, the CSI special committee determined to continue to explore the potential transaction and as an initial step, directed Messrs. Lacey and Fandrich to provide the December 11, 2020 LOI to Ballard Spahr for review and to develop additional information for the CSI special committee relating to the residential solar industry.

 

On December 15 and 16, 2020, Messrs. Lacey and Fandrich discussed with representatives of Ballard Spahr the potential merger transaction between CSI and Pineapple and the December 11, 2020 LOI.

 

On December 16 and 17, 2020, Richard A. Primuth, a CSI special committee member, acting on behalf of the CSI special committee, met with Mr. Fandrich to review in more detail the model for post-transaction share ownership and options for selling or potentially spinning out current CSI businesses to the CSI shareholders in order to deliver value to the CSI shareholders.

 

On December 17, 2020, Messrs. Lacey and Fandrich, representatives of Northland and representatives of Pineapple met with the former president of a public company in the solar, storage and energy services markets and then an advisor to Pineapple, to conduct due diligence about the residential solar industry. As further diligence, Mr. Lacey contacted an energy industry analyst with JMP Securities and discussed with him the industry trends toward consolidation and business aspects of residential solar.

 

Also on December 17, 2020, Mr. Fandrich contacted Northland to request additional information on behalf of the CSI special committee regarding the potential merger transaction and the Pineapple business, including competitive factors, growth strategy, and potential residential solar company targets for acquisition, ownership and management.

 

On December 18, 2020, Messrs. Lacey and Fandrich, representatives of Northland and representatives of Ballard Spahr met to discuss the potential transaction structure, the status of Pineapple transactions to date (which included Pineapple’s acquisition of certain Sungevity assets), the concept of a PIPE (private investment in public equity) financing round to fund acquisitions and go forward operations, and the CVR aspect of the proposed transaction and the potential value to the CSI shareholders.

 

On December 21, 2020, CSI and Pineapple executed a mutual non-disclosure agreement in a form provided by CSI. The mutual non-disclosure agreement included a two-year non-solicitation restriction on hiring of the other party’s covered employees. The mutual non-disclosure agreement between CSI and Pineapple did not contain any standstill provision that would have prohibited Pineapple from, among other things, acquiring control of CSI outside of the CSI-Pineapple transaction negotiations.

 

Also on December 21, 2020, Mr. Fandrich discussed with CSI tax advisors a potential spin-off transaction as an alternative means of delivering potential value to the CSI shareholders and concluded that CSI would not be able to utilize a spin-off structure for the disposition of one or more of its operating subsidiaries.

 

On December 23, 2020, Messrs. Lacey and Fandrich, representatives of Northland and representatives of Pineapple met to discuss Pineapple’s current financial model and other acquisition targets being assessed by Pineapple, which included HEC and E-Gear.

 

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Also on December 23, 2020, Messrs. Lacey and Fandrich, representatives of Northland and representatives of Ballard Spahr met to discuss Pineapple’s current activities, Pineapple’s planned acquisitions, the December 11, 2020 LOI, the planned PIPE to raise funds for Pineapple’s acquisition strategy, and the process for CSI to dispose of its legacy assets.

 

On December 28, 2020, Messrs. Lacey and Fandrich, representatives of Northland and representatives of Ballard Spahr met to discuss and develop proposed revisions to the December 11, 2020 LOI. CSI’s proposed revisions included a base merger consideration of 13.6 million shares of CSI common stock and the issuance of an additional five million shares of CSI common stock if Pineapple consummated an equity financing and repaid its debt within three months of the closing. CSI also proposed that it pursue the sale of its legacy business and that all net proceeds from a transaction pursuant to a definitive agreement signed prior to closing of the merger would be distributed 100% to CSI shareholders through the CVR and not be subject to 10% retention by the post-closing company. Also, in consideration for CSI’s expenditure of time, effort and expense, CSI proposed to add a 60-day exclusivity period to the December 11, 2020 LOI during which Pineapple and its affiliates would not solicit a competing transaction. CSI also proposed to add a one-year standstill provision under which Pineapple and its affiliates could not seek to acquire control of CSI outside of the CSI-Pineapple transaction under negotiation.

 

On December 28, 2020, Ballard Spahr representatives sent a revised draft of the LOI, reflecting the foregoing revisions proposed by CSI, to Faegre Drinker Biddle & Reath LLP (“Faegre Drinker”), counsel to Pineapple.

 

On December 29, 2020, Faegre Drinker, on behalf of Pineapple, forwarded to Ballard Spahr a revised draft LOI, proposing base merger consideration of 17.6 million shares and the right to earn one million shares if specified debt was extinguished within three months of the closing, along with the previously negotiated earn out shares. In addition, the revised draft provided that Pineapple had the right, but not the obligation, to raise up to $10 million in a pre-closing working capital facility that, at the option of the participants, would convert into shares of CSI common stock at the merger closing at an exchange rate of $2.00 per share. This draft LOI proposed an exclusivity period ending on January 31, 2021.

 

Following contacts by CSI and Northland with Lantronix Inc. earlier in the month of December 2020, CSI received on December 29, 2020 a preliminary non-binding LOI from Lantronix Inc. for the sale of assets of the Electronics and Software segment, which comprised a substantial portion of CSI’s legacy business.

 

On December 30, 2020, the CSI special committee met with Messrs. Lacey and Fandrich and representatives of Northland to discuss the proposed Pineapple merger, including a scenario-based value/ownership model prepared by Mr. Fandrich, the Pineapple presentation reviewed on December 14, 2020, and the proposed PIPE, as well as the revised LOI received the prior day. The CSI special committee provided direction to Messrs. Lacey and Fandrich regarding setting base consideration at 15.6 million shares, the proportion of ownership as between the legacy CSI shareholders and the Pineapple members, and earnout shares and potential shares to be issued on conversion of a pre-closing Pineapple debt financing and conditions under which the shares would be issued. The CSI special committee also requested a future meeting with Pineapple chief executive officer Kyle Udseth as part of its due diligence analysis.

 

On December 31, 2020, Mr. Fandrich, representatives of Ballard Spahr and representatives of Northland met to discuss the LOI received on December 29, 2020 and revise it in accordance with the CSI special committee’s direction. As a follow-up to this meeting, later on December 31, 2020, Ballard Spahr delivered to Faegre Drinker a revised version of the LOI. The December 31, 2020 LOI contemplated that (a) CSI would acquire Pineapple by means of a merger transaction by issuing 15.6 million shares of CSI common stock (subject to adjustments), which would constitute approximately 62.4% of CSI’s common stock outstanding after closing of the merger, with CSI’s existing shareholders retaining approximately 9.4 million shares and (b) each shareholder of CSI immediately prior to the merger would receive a CVR reflecting the right to receive (i) 100% of that shareholder’s pro rata percentage of net proceeds from the sale or sales of CSI’s assets under any agreement executed prior to the closing of the merger and (ii) 90% of that shareholder’s pro rata percentage of net proceeds from the sale or sales of CSI’s pre-merger businesses and assets to the extent these net proceeds are realized within 18 months following the closing of the merger. As adjustments to the base merger consideration, CSI would issue three million additional earnout shares to the Pineapple members if certain debts were discharged within three months of closing, five million additional earnout shares if CSI’s stock price achieved a post-closing share-price at $6.00 and $8.00, respectively,

 

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and up to five million additional shares upon conversion of up to $10 million in a Pineapple pre-closing subordinated convertible loan working capital facility. The LOI also indicated that post-closing, the company would be managed by Mr. Udseth as chief executive officer and Mr. Fandrich as chief financial officer. It also provided that the post-merger CSI board of directors would be comprised of Mr. Udseth and Mr. Honour from Pineapple, and Mr. Lacey and Mr. Sampson from CSI, with three additional members to be agreed upon by CSI and Pineapple.

 

On January 4, 2021, Faegre Drinker confirmed on behalf of Pineapple to Ballard Spahr that the December 31, 2020 draft LOI was acceptable and Pineapple was prepared to execute it.

 

On January 5, 2021, the CSI special committee, along with Messrs. Lacey and Fandrich and representatives of Northland, met with Mr. Udseth. The CSI special committee interviewed Mr. Udseth regarding his background, management experience and residential solar industry expertise. The CSI special committee also reviewed with Mr. Udseth the Sungevity assets that Pineapple had recently acquired, the HEC and E-Gear businesses, and Pineapple’s growth strategy. The CSI special committee then excused Mr. Udseth from the meeting and continued to meet with Messrs. Lacey and Fandrich and representatives of Northland to review the December 31, 2020 draft LOI, as well as the potential sale of CSI’s E&S segment to Lantronix.

 

On January 7, 2021, the CSI board of directors held a special meeting that Mr. Fandrich and Northland representatives also attended. The CSI board of directors reviewed the December 31, 2020 LOI, as well as a draft LOI from Lantronix dated December 29, 2020. Mr. Fandrich presented to the CSI board of directors an analysis of the potential value that could be received by CSI shareholders from (a) a distribution to existing CSI shareholders from current CSI cash and cash equivalents plus any proceeds from any CSI legacy assets that were sold prior to closing of the Pineapple merger, (b) the proceeds that potentially could be realized from the monetization of CSI’s legacy assets following the closing of the merger and distributions of the net proceeds of these dispositions to CSI shareholders through the CVR that would be distributed to CSI shareholders immediately prior to closing of the Pineapple merger, and (c) the value to the CSI shareholders of their continuing ownership of CSI following the closing of the merger transaction.

 

The CSI board of directors also determined that, concurrent with negotiations with Pineapple in regard to a definitive merger agreement, it was prudent for CSI to continue to explore the sale of the E&S Segment as an appropriate related step in its overall strategy to maximize shareholder value and provide a return to the CSI shareholders. The CSI board of directors then discussed the process for the possible disposition of the E&S Segment to Lantronix. After further discussion, the CSI board of directors unanimously authorized CSI management to execute the LOI with Pineapple. Later on January 7, 2021, CSI and Pineapple signed the LOI.

 

On January 9, 2021, Ballard Spahr sent a preliminary due diligence request to Faegre Drinker. A data room was established and Pineapple supplied documents required by CSI for its due diligence review, including documents about the planned Pineapple acquisition of HEC and E-Gear, which was intended to occur concurrently with the closing of the CSI Pineapple merger transaction.

 

From January 11, 2021 to January 18, 2021, CSI management and Pineapple management, joined on certain occasions by CSI or Pineapple legal, tax or accounting advisors, had several meetings and telephone discussions regarding the tax, accounting and shareholder approval requirements relating to the proposed transaction.

 

On January 22, 2021, Ballard Spahr delivered an initial draft of the merger agreement to Faegre Drinker.

 

On January 27 and 28, 2021, Mr. Fandrich met separately with four different investment banking firms, including Craig-Hallum Capital Group LLC (“Craig-Hallum”), to discuss on a confidential basis the merger and a potential engagement on behalf of the CSI board of directors to evaluate the merger and provide an opinion relating to the fairness of the merger transaction to CSI.

 

On January 29, 2021, Ballard Spahr delivered to Faegre Drinker an initial draft CVR agreement, and Faegre Drinker delivered to Ballard Spahr a revised merger agreement. Among other changes, the revised merger agreement proposed delivery of a voting agreement by certain CSI directors and officers, expanded the representations to be made by CSI, revised CSI’s non-solicitation and fiduciary out provisions, added a termination fee to be paid by CSI

 

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in certain instances and added provisions relating to a potential equity offering to be consummated at merger closing. 

 

On January 31, 2021, the exclusivity period under the January 7, 2021 LOI expired and it was not formally extended, but the parties continued their discussions regarding the transaction.

 

On February 2, 2021, the CSI board of directors held a special meeting attended by Mr. Fandrich and Kristin Hlavka, CSI’s controller, representatives of Northland and representatives of Ballard Spahr. Representatives of Ballard Spahr presented to the CSI board of directors a review of director fiduciary duties under Minnesota law, specifically in change of control transactions. Ballard Spahr then reviewed with the CSI board of directors key issues raised by the draft merger agreement provided by Faegre Drinker on January 29, 2021, including CSI’s right to consider alternative acquisition proposals, termination fee and expense reimbursement provisions in the event that CSI accepted a superior proposal, indemnification obligations of the Pineapple members, and satisfaction of post-closing obligations through a contractual lock-up of the CSI shares. The CSI board of directors authorized management to continue negotiations.

 

On February 3, 2021, Mr. Fandrich and Ms. Hlavka met with the chair of the CSI compensation committee to discuss the effect of the proposed Pineapple transaction on outstanding awards under the CSI Long-Term Incentive Plan (“LTI Plan”), the CSI 2011 Executive Incentive Compensation Plan (the “2011 Plan”), and the Employee Stock Purchase Plan (“ESPP”). Because the proposed Pineapple transaction would constitute a “change of control” under the terms of the LTI Plan, the 2011 Plan and the ESPP, the chair asked Mr. Fandrich and Ms. Hlavka to develop additional information relating to the treatment of awards.

 

On February 4, 2021, the CSI special committee met with Messrs. Lacey and Fandrich and a representative of Ballard Spahr to discuss potential financial advisors to engage for an analysis of the fairness of the proposed Pineapple transaction. After a detailed review of the background and experience of the firms previously interviewed by Mr. Fandrich, the CSI special committee determined to engage Craig-Hallum and authorized management to enter into an engagement agreement with Craig-Hallum.

 

On February 5, 2021, CSI entered into an engagement letter with Craig-Hallum to render a written opinion to the CSI board of directors as to the fairness to CSI, from a financial point of view, of the proposed transaction between CSI and Pineapple.

 

On February 5, 2021, the CSI special committee, representatives of Northland, representatives of Ballard Spahr, Mr. Lacey, and Mr. Fandrich met with representatives of Craig-Hallum to provide an overview of the transaction and to discuss timing and next steps.

 

On February 5, 2021, Ballard Spahr delivered to Faegre Drinker a revised draft of the merger agreement, adding, among other provisions, a reverse termination fee to be paid by Pineapple if Pineapple were to terminate the agreement under certain circumstances, deleting the proposed working capital adjustment provisions and modifying the non-solicitation and termination fee provisions.

 

On February 6, 2021, in connection with preparation of the fairness opinion to be issued by Craig-Hallum, representatives of Pineapple, representatives of Northland and Mr. Fandrich met with representatives of Craig-Hallum to allow the Pineapple representatives and Pineapple’s financial advisors to present information to Craig-Hallum regarding the Pineapple business and its planned strategy in the residential solar market.

 

On February 8, 2021, representatives of Northland, Mr. Fandrich, and representatives of Craig-Hallum met to further discuss the Pineapple business strategy. Also on February 8, 2021, Mr. Fandrich met with representatives of Pineapple to discuss certain issues relating to the merger agreement.

 

On February 9, 2021, Faegre Drinker delivered to Ballard Spahr a revised draft of the merger agreement revising, among other things, the non-solicitation and termination fee provisions (including proposing termination fee and reverse termination fee of $3.5 million and expense reimbursement of $1.0 million) and deleting the closing conditions relating to the working capital of CSI and Pineapple at closing and consideration adjustments relating to

 

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cash at closing for CSI and Pineapple.  Between February 9 and February 23, 2021, representatives of Faegre Drinker and Ballard Spahr negotiated various items in the merger agreement, including with respect to the non-solicitation and indemnification provisions.

 

On February 16, 2021, the CSI compensation committee and CSI board of directors held regularly scheduled meetings attended by Mr. Fandrich and Ms. Hlavka, representatives of Ballard Spahr, and representatives of Northland. At this board meeting, representatives of Ballard Spahr summarized the status of the potential transaction with Pineapple, including the status of due diligence review and terms of the merger agreement. The CSI board of directors then reviewed and discussed due diligence materials and background information on the solar industry. Mr. Fandrich shared with the CSI board of directors an analysis of the potential range of CVR distributions reflecting management’s current estimates of cash that could possibly be generated from the sale of real estate, the E&S Segment and the S&S Segment. Mr. Fandrich also provided a summary of the post-closing ownership of CSI and the potential value to CSI shareholders from continuing as shareholders in the post-closing CSI.

 

At the February 16, 2021 meeting of the CSI board of directors, the CSI compensation committee reported that the consummation of the proposed merger with Pineapple would constitute a “change in control” under the 2011 Plan and the ESPP. The CSI compensation committee discussed the effect of the consummation of the proposed merger on outstanding equity awards under 2011 Plan and the ESPP and recommended the CSI board of directors take the following actions pursuant to its obligations and authority under the 2011 Plan and the ESPP:

 

 

Approve that on a date no earlier than 20 days before a change in control (the “Action Effective Date”) resulting from the proposed Pineapple transaction, all outstanding, in-the-money stock options would be settled by exchanging the options for a “net” number of shares (“Net Shares”) that took into account that option holders would not pay the exercise price to exercise their options, as calculated under the formula for determining the number of Net Shares provided in the 2011 Plan and that these Net Shares would be contingently issued as of the Action Effective Date.

 

 

Approve that the Action Effective Date would be set to ensure that the holders of RSUs and in-the-money stock options would receive any dividends paid to the other CSI shareholders prior to the effective time of the merger;

 

 

Approve that, as provided in the 2011 Plan, with respect to options for which the per share exercise price was equal to or greater than the market price for the shares on the Action Effective Date, such options automatically would be cancelled without payment of any consideration therefor; and

 

 

Approve that, with respect to the ESPP, after the current quarterly phase of the ESPP ending on March 31, 2021, unless approved by Pineapple, no new phase of the ESPP would commence prior to the effective time of the merger or until the merger agreement is terminated.

 

The full CSI board of directors discussed and supported this recommendation and later adopted resolutions to effectuate the foregoing at the CSI board of directors’ meeting on March 1, 2021. Subsequently, because the E&S Sale Transaction also constituted a change in control under the 2011 Plan, on April 27, 2021, the CSI board of directors adopted similar resolutions with respect to the E&S Sale Transaction. Immediately following the August 2, 2021 closing date of the E&S Sale Transaction, there were no equity incentive awards outstanding under the 2011 Plan or otherwise. Additionally, immediately following the August 2, 2021 closing date of the E&S Sale Transaction, there were no awards outstanding under the LTI Plan.

 

On February 19 and 21, 2021, Messrs. Lacey and Mr. Fandrich met with representatives of Ballard Spahr and Mr. Primuth to discuss various open issues related to the merger agreement and discuss due diligence matters.

 

On February 22, 2021, the CSI board of directors held a special meeting attended by Mr. Fandrich, Ms. Hlavka, representatives of Northland, representatives of Ballard Spahr, and representatives of Craig-Hallum. Craig-Hallum presented a preliminary analysis of the methodology that Craig-Hallum would use in its fairness opinion and responded to questions from CSI board members.

 

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On February 23, 2021, the CSI board of directors held a special meeting attended by Mr. Fandrich, Ms. Hlavka, representatives of Northland, representatives of JMP Securities and representatives of Ballard Spahr. The representatives of Northland and JMP Securities delivered a presentation regarding a proposed PIPE transaction, as well as their respective experience and familiarity of transactions of this nature. After representatives of Northland and JMP Securities left the meeting, the CSI board of directors discussed with representatives of Ballard Spahr outstanding issues related to the CSI merger agreement, including indemnification, remedies and certain CVR provisions.

 

Also on February 23, 2021, Ballard Spahr delivered to Faegre Drinker a revised draft of the merger agreement, which, among other things, clarified the relationship between the disposition of legacy CSI assets and the earnout shares, and reduced the termination and reverse termination fees to $2.5 million and the expense reimbursement to $750,000.

 

On February 24, 2021, Faegre Drinker delivered to Ballard Spahr a further revised draft of the merger agreement, adding provisions relating to a share escrow relating to the transaction between Pineapple and HEC/E-Gear and expense reimbursement, and revising the indemnification provisions. The parties subsequently exchanged additional drafts before March 1, 2021, including minor revisions.

 

On February 25 and 26, 2021, CSI’s board of directors met with representatives of Ballard Spahr, Mr. Fandrich and Ms. Hlavka to review and discuss estimates of potential distributions of proceeds from the disposition of CSI legacy assets by means of cash dividends prior to the proposed merger with Pineapple and by means of the CVRs issued upon consummation of the merger, a draft press release for the Pineapple merger, the status of the PIPE, the status of Pineapple’s transaction with HEC and E-Gear, and outstanding issues related to the merger agreement. The CSI board of directors provided feedback to Ballard Spahr on the open issues, including indemnification and CVR provisions. At this meeting, CSI’s board of directors agreed that Mr. Sampson, a member of the CSI special committee, would be selected as the shareholder representative under the CVR agreement due to his long-standing and significant direct and beneficial share ownership in CSI and his business and executive experience.

 

On February 28, 2021, CSI’s board of directors held a special meeting with representatives of Craig-Hallum, Northland and Ballard Spahr, and with Mr. Fandrich and Ms. Hlavka. During this meeting, Craig-Hallum presented its updated analysis. CSI management and Ballard Spahr reported to CSI’s board of directors regarding business and legal due diligence. Representatives of Ballard Spahr then reviewed the resolution of open issues in the merger agreement, CVR agreement, voting agreement and other agreements. Representatives of Ballard Spahr reported to CSI’s board of directors regarding the status of Pineapple’s purchase agreement with HEC and E-Gear, which was a prerequisite to CSI’s willingness to enter into the merger agreement with Pineapple.

 

On March 1, 2021, Faegre Drinker advised Ballard Spahr that Pineapple and HEC/E-Gear were prepared to enter into their purchase agreement.

 

After the close of market on March 1, 2021, the CSI board of directors met with representatives of Craig-Hallum, Northland and Ballard Spahr, and with Mr. Fandrich and Ms. Hlavka. Prior to the meeting, the CSI board of directors was provided with the finalized merger agreement and other agreements, documents and summary materials. At the March 1, 2021 meeting, representatives of Craig-Hallum reviewed with the CSI board of directors its updated analysis of the merger consideration and delivered an oral opinion, confirmed by delivery of a written opinion dated March 1, 2021, to the CSI board of directors to the effect that, as of March 1, 2021, and based upon and subject to the factors and assumptions set forth therein, the merger consideration to be paid by CSI pursuant to the terms of the merger agreement is fair from a financial point of view to CSI. The full text of Craig-Hallum’s written opinion, dated March 1, 2021, which describes the assumptions made, procedures followed, matters considered, limitations on the review undertaken and qualifications, is attached as Appendix B to this proxy statement/prospectus.

 

Following Craig-Hallum’s presentation and delivery of its oral opinion, Ballard Spahr representatives summarized the directors’ applicable fiduciary duties in relation to the transaction. Thereafter, the CSI board of directors discussed the proposed transaction and reviewed the matters described in the section of this proxy statement/prospectus entitled “— Reasons for the Pineapple Merger Transaction and Recommendation of the CSI Board of Directors.” Thereafter, the CSI special committee recommended and the CSI board of directors unanimously (a) determined that the merger agreement and the transactions contemplated thereby (including the

 

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merger, the CVR agreement and the issuance by CSI of its common stock in connection with the merger) are fair to and in the best interests of CSI and its shareholders, (b) approved, adopted and declared advisable the merger agreement and the transactions contemplated thereby, including the CVR agreement, (c) directed that the approval of transactions contemplated by the merger agreement be submitted to a vote at a meeting of CSI’s shareholders and (d) recommended the adoption of the merger agreement and the approval of the transactions contemplated by the merger agreement, including the merger and the CVR agreement, by CSI’s shareholders at a future special meeting of CSI’s shareholders. The CSI board of directors instructed CSI management to execute and deliver the merger agreement concurrently with confirmation of the execution and delivery by Pineapple and HEC/E-Gear of their purchase agreement. The CSI compensation committee also recommended and the CSI board of directors also unanimously approved resolutions consistent with the recommendation of the CSI compensation committee at the February 16, 2021 meeting relating to the 2011 Plan and the ESPP.

 

After confirmation of the execution of the Pineapple-HEC/E-Gear purchase agreement, CSI and Pineapple executed the merger agreement in the evening of March 1, 2021. CSI issued a press release in the morning of March 2, 2021 announcing the merger agreement and the Pineapple Merger Transaction. The closing price of CSI’s common stock on March 1, 2021, the last trading day before the public announcement of the merger agreement, was $5.35 per share.

 

Past Contacts, Transactions or Negotiations

 

Other than as described under “Background of the Pineapple Merger Transaction” above, CSI and Pineapple have not had any negotiations, transactions or material contacts during the past two years, and, other than as described therein and in the merger agreement, in the related agreements such as the CVR agreement attached to this proxy statement/prospectus as Appendix A-2 and the voting agreement attached to this proxy statement/prospectus as Appendix A-3, and the securities purchase agreement relating to the PIPE attached to this proxy statement/prospectus as Appendix C, there are no present or proposed material agreements, arrangements, understandings or relationships between CSI executive officers or directors and Pineapple, or its executive officers or directors.

 

Reasons for the Pineapple Merger Transaction and Recommendation of the CSI Board of Directors

 

In evaluating the Pineapple Merger Transaction, the CSI board of directors consulted with CSI’s management, legal counsel and financial advisor. In reaching its decision to approve the Pineapple Merger Transaction, and to recommend that our shareholders vote to approve the Pineapple Merger Transaction, the CSI board of directors considered various factors as described below.

 

The CSI board of directors considered a number of factors weighing in favor of the Pineapple Merger Transaction, including, but not limited to, the following factors:

 

 

the CSI board of directors’ assessment over the last several years of the challenges and risks that we have faced, and would likely continue to face, if CSI continued as an independent public company conducting business through its E&S Segment and S&S Segment, including the challenges and risks that the CSI board of directors identified in its review of the five-year strategic plan approved on December 8, 2020, including:

 

 

despite significant effort and investment, CSI has not achieved many of its business and financial objectives during the past several years;

 

 

many of the existing products of the E&S Segment, which comprised approximately 81% of CSI revenue for the year ended December 31, 2020, were legacy products that were not expected to produce significant future revenue growth, if any, with revenues from many of the legacy products likely to decline in future years;

 

 

the fact that the financial results of the E&S Segment and CSI as a whole could be adversely affected if one or more of the E&S Segment’s larger customers substantially reduces its orders and the dependence of the S&S Segment on a limited number of customers for a significant portion of its revenue;

 

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the size of the E&S Segment and S&S Segment businesses and their respective positions in their primary markets, the stiff competition with respect to price and other factors faced by these businesses, including competition from larger, better-capitalized competitors that can more easily engage in discounting to retain market share;

 

 

the fact that CSI incurs substantial costs as a public company, the relatively high level of corporate overhead expense and risk as a public company in relation to CSI’s relatively small revenues and profits, combined with our investors’ expectations, which materially constrain our ability to invest significant additional amounts to accelerate new product development or to acquire new products without adversely affecting our profitability;

 

 

the expense and risk associated with any acquisition strategy CSI might pursue to achieve sustainable growth and profitability and to spread public company costs over substantially greater revenues, including, but not limited to uncertainty in our ability to find attractive acquisition candidates that can be acquired at reasonable valuations, the substantial expense we would incur to explore possible acquisitions regardless of whether a transaction was successfully completed, the risk that the acquisitions will not successfully deliver the growth and profitability that was anticipated, risks associated with integrating the acquired company into our existing operations, and the risk of losing key employees of any acquired company or existing CSI employees;

 

 

CSI’s ability to compete and increase revenues for each of the E&S Segment and the S&S Segment requires continual focus on delivering high-quality, innovative and competitively priced products and services and the regular introduction of new products and services that meet evolving customer requirements, but given the inherent challenges and risks associated with new product development efforts, there is no assurance that we would be able to commercialize new E&S Segment and S&S Segment products or services in a timely manner and generate substantial revenues from these products;

 

 

the view of the CSI board of directors starting in November 2020 that continued independent operation of the CSI businesses likely would require the development and execution of a transformative plan in order to address the limited prospects for significant growth in the E&S Segment (and, therefore, CSI as a whole) and to address the challenges we historically have experienced and will likely experience in the future;

 

 

the fact that any transformative plan would require significant changes in business strategy and significant additional investment in the E&S Segment and the S&S Segment or the development of new lines of business, lead to operating losses for one or more years, reduce our cash reserves, and present other risks, challenges and uncertainties that would likely emerge in undertaking to implement a transformative plan, including the risk that it would not overcome our current and future challenges;

 

 

the likelihood that, due to the small size of the S&S Segment, intense competition and other challenges faced by the S&S Segment, the financial performance of the S&S Segment would not be sufficient to offset any stagnation or decline in growth of the E&S Segment business and the financial performance of the S&S Segment alone would not provide a basis for sustainable growth and profitability of CSI as a whole;

 

 

the view of the CSI board of directors that the highest value for the CSI shareholders would be obtained through a strategy of separately monetizing CSI’s operating and non-operating assets and properties, rather than sale of CSI as a whole, and that CSI’s status as a Nasdaq-listed public reporting company represented an independent source of value that could be realized through the Pineapple Merger Transaction;

 

 

the view of the CSI board of directors that the Pineapple Merger Transaction provided an opportunity for CSI to rapidly enter the residential solar market through the existing businesses of Pineapple Energy, HEC and E-Gear and that the residential solar market had potential for stronger market growth and higher valuation multiples than CSI’s historic telecommunications equipment business;

 

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the substantial multi-year efforts by the CSI board of directors and, at the direction of the CSI board of directors, its financial advisor, to pursue strategic alternatives did not result in a bona fide proposal for acquiring CSI as a whole, as well as the absence of any bona fide expression of interest in acquiring CSI as a whole after the announcement of the Pineapple Merger Transaction;

 

 

the Pineapple Merger Transaction will allow CSI to deliver value to CSI’s shareholders through a combination of (i) the opportunity for CSI shareholders to receive an attractive return from dividends or distributions of the net proceeds from the divestiture of CSI’s pre-merger operating and non-operating assets and properties, and (ii) the opportunity for CSI’s shareholders, through ownership of CSI common stock following the Pineapple Merger Transaction, to participate in the potential growth of the combined company’s residential solar, battery storage, and grid services solutions business;

 

 

after a review of the current and historical financial condition of CSI and each of its segments, its results of operations, prospects, business strategy, management team, competitive position, and the respective industries of each segment and the industries in which the customers of each segment operate, the CSI board of directors believed that the Pineapple Merger Transaction was more likely to deliver a more favorable and attractive value and return to the CSI shareholders than the potential value or return that might result from possible alternatives to the Pineapple Merger Transaction, including continued operation of the E&S Segment and S&S Segment businesses, within the structure of a relatively small public company, the development and execution of a transformative plan, or a complete liquidation of CSI;

 

 

the structure of the Pineapple Merger Transaction will allow CSI shareholders the opportunity to receive a return on their pre-merger ownership of CSI common stock through CSI’s monetization of its legacy assets both (i) prior to the merger, by payment of pre-merger dividends to CSI shareholders and (ii) following the merger, by means of the CVRs pursuant to which CSI’s pre-merger shareholders will have a contractual right to receive certain proceeds from such monetization;

 

 

the ability of the CSI shareholders to receive an attractive cash return on their ownership of CSI common stock in the market, which has been negatively impacted by relatively stagnant prevailing market prices over the last several years, low trading volume, low public float and resulting lack of liquidity in the CSI common stock, as well as the lack of dividends since June 2020;

 

 

the belief of the CSI board of directors that divestiture of substantially all of CSI’s operating and non-operating assets, combined with CSI’s cash balance, would provide the CSI shareholders with a return on their CSI common stock that would compare favorably to the generally prevailing market prices for CSI common stock in the last several years, including the closing price of $5.35 per share on March 1, 2021, the last business day prior to announcement of the Pineapple Merger Transaction, and the CSI board of director’s view of the future CSI stock price trends given CSI’s limited prospects for significant growth and the expected challenges that would be faced by the E&S Segment and S&S Segment businesses;

 

 

the determination of the CSI board of directors that the expected relative percentage ownership of CSI shareholders and Pineapple members in the combined company was fair, in the judgment of the CSI board of directors, based on the CSI board of directors’ assessment of the approximate valuations of CSI and Pineapple, as well as the comparative costs and risks associated with alternatives to the Pineapple Merger Transaction;

 

 

CSI’s management and the CSI board of directors conducted due diligence examinations of Pineapple and held discussions with Pineapple’s management and held discussions with CSI’s financial and legal advisors as part of CSI’s due diligence examination of Pineapple and, based on such due diligence, the CSI board of directors’ assessment of the potential opportunity presented by combining the Pineapple, HEC and E-Gear businesses, their outlook and prospects, and the cash resources expected to be available at the closing of the merger due to pre-merger financing efforts of Pineapple and CSI;

 

 

the composition of the executive team and board of directors of CSI post-merger, including the fact that CSI’s Executive Chair would continue as the Chair of the combined company and CSI’s Chief Financial Officer would continue as the Chief Financial Officer of the combined company

 

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following the merger and that two other CSI directors will continue as directors of the combined company;

 

 

the CSI board of directors’ belief that the CVR agreement, which provides for certain potential cash payments from the divestiture of CSI assets and properties during an 18-month period following the closing, is reasonable and fair under the circumstances, including the fact that CSI shareholders of record as of the close of the business day immediately preceding the closing of the merger will become CVR holders, whether or not they continue to hold CSI shares subsequent to the merger;

 

 

the rights of, and limitations on, CSI and Pineapple under the merger agreement to consider certain unsolicited acquisition proposals under certain circumstances, should such party receive a “superior offer”;

 

 

the CSI board of directors’ belief that the terms of the merger agreement, including the parties’ representations, warranties and covenants, deal protection provisions and the conditions are reasonable for a transaction of this nature; and

 

 

the opinion of Craig-Hallum, dated March 1, 2021, to the CSI board of directors as to the fairness to CSI, from a financial point of view and as of the date of the opinion, of the Merger Consideration to be paid by CSI pursuant to the terms of the merger agreement, which opinion was based on and subject to various assumptions made, procedures followed, matters considered, limitations on the review undertaken and qualifications as more fully described below in the section entitled “Opinion of the Financial Advisor to CSI’s Board of Directors.”

 

The CSI board also considered potential drawbacks and risks relating to the Pineapple Merger Transaction, including, but not limited to:

 

 

the Merger Consideration may have greater or lesser value at the closing than at the time the merger agreement was signed because the number of shares to be issued by CSI under the merger agreement is fixed and not adjustable based on the market price of CSI common stock or any change in value of the equity interests of Pineapple; 

 

 

the significant dilution that will be experienced by CSI shareholders as a result of the Pineapple Merger Transaction and that the issuance of the Merger Consideration will result in a change of control with Pineapple members, as a group, receiving more than a majority of the outstanding shares of the combined company, as well as the fact that the extent of the dilution will depend upon future conditions or events outside of the control of the CSI board of directors, such as the achievement of various milestones relating to the Earnout Consideration and the occurrence of a Convertible Note Financing;

 

 

the strategic direction of the combined company following the merger will be determined by senior management and a board of directors that will include Pineapple’s Chief Executive Officer and directors designated by Pineapple;

 

 

the lack of experience of some of the continuing CSI directors, management, and other employees in the residential solar industry;

 

 

the potential benefits to the CSI shareholders of the Pineapple Merger Transaction may not be fully achieved or may not be achieved within the expected timeframe or that the growth of the combined company’s residential solar, battery storage, and grid services solutions business may not materialize or may not materialize as quickly as presently contemplated;

 

 

there can be no guarantee that the net proceeds from CSI’s operating and non-operating assets and properties will result in the payment of any specific aggregate amount to CSI’s pre-merger shareholders, pursuant to dividends before the merger together with further distributions pursuant to the CVRs;

 

 

the substantial expenses incurred and to be incurred by CSI in connection with the Pineapple Merger Transaction and the fact that the combined company will bear the transaction expenses of both CSI and Pineapple if the merger is consummated;

 

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the Pineapple Merger Transaction may not be completed in the time period expected, as well as the possibility that an event, change or other circumstance could give rise to the termination of the merger agreement and termination of the Pineapple Merger Transaction;

 

 

the possibility that CSI would be obligated to pay Pineapple a parent termination fee of $2,500,000 under certain circumstances, and that the potential payment of this fee might deter other potential acquirors of CSI;

 

 

our ability to obtain shareholder approval for the Pineapple Merger Transaction, which requires approval by the holders of at least two-thirds of our common stock outstanding and entitled to vote on the Pineapple Merger Proposal;

 

 

conditions to the closing of the Pineapple Merger Transaction may not be satisfied or may involve unexpected costs, liabilities or delays;

 

 

risks that the Pineapple Merger Transaction will disrupt current CSI plans and operations, including the planned divestiture of CSI’s pre-merger operating and non-operating assets and properties, or that the business or stock price of CSI may suffer as a result of uncertainty surrounding the Pineapple Merger Transaction;

 

 

the outcome of any legal proceedings related to the Pineapple Merger Transaction; and

 

 

the various other risks associated with the combined company and the Pineapple Merger Transaction, including those described in the sections entitled “Risk Factors.”

 

After taking into account the material factors relating to the merger agreement and the Pineapple Merger Transaction, including those factors set forth above, the CSI board of directors unanimously concluded that the benefits of the merger agreement and the Pineapple Merger Transaction outweigh the risks it presents and that the merger agreement and the Pineapple Merger Transaction are advisable and in the best interests of CSI and our shareholders. The CSI board of directors did not assign relative weights to the material factors it considered. In addition, the CSI board of directors did not reach any specific conclusion on each of the material factors considered, but conducted an overall analysis of all of the material factors. Individual members of the CSI board of directors may have given different weights to different factors.

 

For the reasons set forth above, the CSI board of directors has unanimously determined that the merger agreement and the Pineapple Merger Transaction are advisable and are fair to and in the best interests of our company and our shareholders, and unanimously recommends that shareholders vote “FOR” the Pineapple Merger Proposal.

 

Opinion of the Financial Advisor to CSI’s Board of Directors

 

Craig-Hallum rendered its opinion to the CSI board of directors that, as of March 1, 2021, and based upon and subject to the factors and assumptions set forth therein, the Merger Consideration to be paid by CSI pursuant to the terms of the merger agreement is fair from a financial point of view to CSI.

 

The full text of the written opinion of Craig-Hallum, dated March 1, 2021, which sets forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Appendix B to this proxy statement/prospectus. Craig-Hallum provided its opinion for the information and assistance of the CSI board of directors in connection with its consideration of the merger agreement and the merger. The Craig-Hallum opinion was not intended to and does not constitute a recommendation as to how any CSI Shareholder should vote or make any election with respect to the merger agreement, the merger, or any other matter.

 

In arriving at its opinion, Craig-Hallum, among other things:

 

 

Reviewed a draft of the merger agreement dated February 27, 2021;

 

 

Reviewed publicly available audited financial statements of CSI for the fiscal years ending December 31, 2018 to December 31, 2019;

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Reviewed publicly available unaudited financial statements of CSI for the quarters ending March 31, 2020, June 30, 2020, and September 30, 2020

 

 

Reviewed preliminary financial information of CSI for the quarter and fiscal year ending December 31, 2020;

 

 

Reviewed projected income statements of CSI for the fiscal years ending December 31, 2021 to December 31, 2025, as well as certain estimates of net operating loss tax benefits prepared CSI management;

 

 

Reviewed Pineapple historical pro forma unaudited financial statements for the fiscal years ending December 31, 2018 to December 31, 2020, consolidated with the companies acquired or to be acquired in the Pre-Closing Acquisition;

 

 

Reviewed projected income statements of Pineapple for the fiscal years ending December 31, 2021 to December 31, 2025, prepared by Pineapple management;

 

 

Held discussions with members of senior management of both CSI and Pineapple concerning their evaluations of the merger and their businesses, operating environments, competitive landscapes, financial conditions, industry conditions, and prospects and strategic objectives, as well as such other matters as Craig-Hallum deemed necessary or appropriate for purposes of rendering its opinion;

 

 

Reviewed historical market prices and trading activity for CSI common stock;

 

 

Compared certain publicly available financial and stock market data for CSI, as well as the aforementioned internal financial data for Pineapple with similar information for certain other publicly traded companies that Craig-Hallum deemed to be relevant to CSI or Pineapple;

 

 

Reviewed the publicly available financial terms of certain business combination transactions that Craig-Hallum deemed to be relevant to CSI and Pineapple;

 

 

Performed a discounted cash flow analysis of each of CSI and Pineapple on a stand-alone basis utilizing information prepared by and furnished to Craig-Hallum by their respective management teams;

 

 

Performed a relative contribution analysis of CSI and Pineapple and an implied multiples analysis of Pineapple; and

 

 

Conducted such other analyses, examinations and inquiries and considered such other financial, economic and market criteria as Craig-Hallum deemed necessary and appropriate in arriving at its opinion.

 

In conducting its review and rendering its opinion, Craig-Hallum relied upon and assumed, without independent verification, the accuracy and completeness of all data, material and other information furnished, or otherwise made available to, discussed with, or reviewed by Craig-Hallum or publicly available, and did not attempt to independently verify, and assumed no responsibility for the independent verification, of such information; relied upon the assurances of management of CSI and Pineapple that the financial projections for CSI and Pineapple and estimates of net operating loss tax benefits prepared by CSI management were reasonably prepared in good faith on bases reflecting the best currently available estimates and judgments of the management of CSI as to the future financial results and condition of CSI and the combined company, the best currently available estimates and judgments of the management of Pineapple as to the future financial results and condition of Pineapple, and Craig-Hallum expressed no opinion with respect to such projections or the assumptions on which they were based; relied upon and assumed that there were no material changes in assets, financial condition, results of operations, business or prospects of CSI or Pineapple since the date of the last financial statements made available to Craig-Hallum prior to the date of its opinion; and assumed that neither CSI nor Pineapple was party to any material pending transaction, including any external financing, recapitalization, acquisition or merger, other than the merger and the Pre-Closing Acquisition.

 

CSI and Pineapple do not publicly disclose internal management projections of the type provided to Craig-Hallum in connection with Craig-Hallum’s analysis of the merger, and such internal management projections were not prepared with a view toward public disclosure. These internal management projections provided to Craig-Hallum were prepared by management of CSI and Pineapple and were based on numerous variables and assumptions that are inherently uncertain and may be beyond the control of management, including, without limitation, factors related to general economic and competitive conditions. Accordingly, actual results could vary significantly from those set forth in such internal management projections.

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Craig-Hallum was not asked to undertake, and did not undertake, an independent verification of any information provided to or reviewed by Craig-Hallum, nor was Craig-Hallum furnished with any such verification, and Craig-Hallum does not assume any responsibility or liability for the accuracy or completeness thereof. Craig-Hallum did not conduct a physical inspection of any of the properties or assets of CSI or Pineapple. Craig-Hallum did not make an independent evaluation or appraisal of the assets or the liabilities (contingent or otherwise) of CSI or Pineapple, nor was Craig-Hallum furnished with any such evaluations or appraisals, nor did Craig-Hallum evaluate the solvency of CSI or Pineapple under any state or federal laws.

 

Craig-Hallum also assumed that the final executed form of the merger agreement did not differ in any material respects from the latest draft provided to Craig-Hallum and that the merger will be consummated in accordance with the terms and conditions of the merger agreement without waiver, modification or amendment of any material term, condition or agreement, and that, in the course of obtaining the necessary regulatory or third-party consents and approvals (contractual or otherwise) for the merger, no delay, limitation, restriction or condition will be imposed that would have an adverse effect on CSI or Pineapple or the contemplated benefits of the merger. Craig-Hallum is not a legal, tax or regulatory advisor and relied upon, without independent verification, the assessment of CSI and its legal, tax and regulatory advisors with respect to such matters.

 

Craig-Hallum was not requested to, and did not, (i) participate in negotiations with respect to the merger agreement, (ii) solicit any expressions of interest from any other parties with respect to any business combination with CSI or any other alternative transaction or (iii) advise the CSI board of directors or any other party with respect to alternatives to the merger. In addition, Craig-Hallum was not requested to and did not provide advice regarding the structure of the transaction between CSI and Pineapple, the type or amount of consideration to be paid by CSI under the merger agreement, or any other aspect of the merger, nor did Craig-Hallum provide services other than the delivery of its opinion. Craig-Hallum expressed no opinion with respect to any transaction to which CSI may be a party other than the merger, including, without limitation, the divestitures of substantially all of the business, assets, and properties that relate to the operations of CSI conducted prior to the closing of the merger. Craig-Hallum expressed no opinion as to the amount, nature or fairness of the consideration or compensation to be received in or as a result of the merger by securityholders, officers, directors or employees of the Company, including without limitation the amount that may be received pursuant to the CVR agreement. Craig-Hallum’s opinion did not address any other aspect or implication of the merger, the merger agreement or any other agreement or understanding entered into in connection with the merger or otherwise. Craig-Hallum was not requested to opine as to, and its opinion did not address, the decision to undertake or the terms of any offering of debt or equity securities, the basic business decision to proceed with or effect the merger, or any solvency or fraudulent conveyance consideration relating to the merger.

 

Craig-Hallum’s opinion was necessarily based upon economic, market, monetary, regulatory and other conditions as they existed and could be evaluated, and the information made available to Craig-Hallum, as of the date of its opinion. Craig-Hallum did not express any opinion as to the prices or trading ranges at which CSI common stock will trade at any time. Furthermore, Craig-Hallum did not express any opinion as to the impact of the merger on the solvency or viability of the surviving corporation in the merger or the ability of the surviving corporation to pay its obligations when they become due.

 

Craig-Hallum delivered its opinion on March 1, 2021. Craig-Hallum assumed no responsibility for updating or revising its opinion based on circumstances or events occurring after the date thereof and has not updated its opinion. Craig-Hallum’s opinion was approved by Craig Hallum’s fairness opinion committee in accordance with established procedures.

 

The consideration to be paid by CSI pursuant to the terms of the merger agreement was determined through arm’s-length negotiations between CSI and Pineapple and was approved by the CSI board of directors. Craig-Hallum did not provide advice to the CSI board of directors during these negotiations nor recommend any specific consideration to CSI nor the CSI board of directors nor suggest that any specific consideration constituted the only appropriate consideration for the merger. In addition, Craig-Hallum’s opinion and its presentation to the CSI board of directors were one of many factors taken into consideration by the CSI board of directors in deciding to approve the merger.

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Summary of Financial Analyses

 

In accordance with customary investment banking practice, Craig-Hallum employed generally accepted valuation methods in reaching its financial opinion. The following is a summary of the material financial analyses contained in the presentation that was made by Craig-Hallum to the CSI board of directors on March 1, 2021, and that were utilized by Craig-Hallum in connection with providing its opinion. However, the following summary does not purport to be a complete description of the financial analyses performed by Craig-Hallum, nor does the order of analyses described represent the relative importance or weight given to those analyses by Craig-Hallum. Some of the summaries in the financial analyses include information presented in tabular format. The tables must be read together with the full text of each summary and are alone not a complete description of Craig-Hallum’s financial analyses. The following quantitative information is based on market data as it existed on or before March 1, 2021, and is not necessarily indicative of current or future market conditions.

 

For purposes of its stand-alone analyses performed on CSI, Craig-Hallum utilized CSI’s internal financial projections for fiscal years ended December 31, 2021 through December 31, 2025, prepared by and furnished to Craig-Hallum by the management of CSI. Information regarding the cash, number of fully-diluted shares of common stock outstanding and net operating losses for CSI was provided by CSI management.

 

For purposes of its stand-alone analyses performed on Pineapple, Craig-Hallum utilized Pineapple’s internal financial projections for fiscal years ended December 31, 2021 through December 31, 2025, prepared by and furnished to Craig-Hallum by the management of Pineapple. Information regarding the net debt for Pineapple was provided by Pineapple management.

 

CSI Historical Trading Analyses

 

Craig-Hallum reviewed the share price trading history of CSI as of March 1, 2021, as well as certain volume weighted average price (“VWAP”) metrics for the following time periods: 1-week, 1-month, 3-month, 6-month, 1-year, 2-year and 5-year. The share price as of March 1, 2021, was within a -9.9% to +10.3% range at each of the dates listed below:

 

CSI Historical Share Price

“As of” Date

 

Share Price

 

 

 

March 1, 2021

 

$5.35

CSI Historical Trading

Period

 

VWAP

 

 

 

1-Week

 

$5.51

1-Month

 

$5.52

3-Month

 

$5.22

6-Month

 

$4.85

1-Year

 

$4.90

2-Year

 

$5.94

5-Year

 

$5.35

 

Comparable Public Company Analysis – CSI Stand-Alone 

 

Craig-Hallum reviewed and compared certain financial information for CSI to corresponding financial information, ratios and public market multiples for the following publicly traded companies, which, in the exercise of its professional judgment, Craig-Hallum determined to be relevant to its analysis. In selecting comparable public companies, Craig-Hallum focused on businesses in the technology and communication services/equipment industries, specifically those dealing with traditional connectivity products, edge computing components and/or software-design wide-area networks.

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Selected Companies:

 

Technology and Communications

 

 

ADTRAN, Inc.

 

 

Casa Systems, Inc.

 

 

Clearfield, Inc.

 

 

Digi International Inc.

 

 

DZS Inc.

 

 

Identiv, Inc.

 

 

Iteris, Inc.

 

 

Lantronix, Inc.

 

Craig-Hallum obtained financial metrics and projections for the selected companies from SEC EDGAR and S&P Capital IQ (“Capital IQ”). In its analysis, Craig-Hallum derived and compared multiples for CSI and the selected companies, calculated as follows:

 

 

Total enterprise value (“TEV”) as a multiple of revenue over the latest twelve months (“LTM”)

 

 

TEV as a multiple of estimated revenue for calendar year 2021 (“CY 2021E”)

 

 

TEV as a multiple of estimated revenue for calendar year 2022 (“CY 2022E”)

 

 

TEV as a multiple of estimated adjusted EBITDA for calendar year 2021

 

 

TEV as a multiple of estimated adjusted EBITDA for calendar year 2022

 

TEV refers to market capitalization—calculated utilizing the treasury stock method—plus all outstanding debt, plus preferred stock, plus any minority interest and less cash and cash equivalents (“net debt”). Adjusted EBITDA refers to earnings before interest, taxes, depreciation, amortization, stock-based compensation and any other expenses deemed to be non-recurring in nature. This analysis indicated the following:

 

Financial Multiple

 

25th

Percentile*

 

Median*

 

75th

Percentile*

 

 

 

 

 

 

 

TEV / LTM Revenue

 

2.1x

 

 

2.4x

 

 

2.8x

 

 

 

 

 

 

 

 

TEV / CY 2021E Revenue

 

1.9x

 

 

2.1x

 

 

2.6x

 

 

 

 

 

 

 

 

TEV / CY 2022E Revenue

 

1.5x

 

 

1.8x

 

 

2.1x

 

 

 

 

 

 

 

 

TEV / CY 2021E Adjusted EBITDA

 

17.8x

 

 

22.8x

 

 

30.3x

 

 

 

 

 

 

 

 

TEV / CY 2022E Adjusted EBITDA

 

14.2x

 

 

14.9x

 

 

18.2x

 

* Excludes Communications Systems, Inc.

 

In reviewing this analysis, Craig-Hallum also considered, among other things, the relative comparability of the selected companies to Communications Systems, Inc. Based upon the foregoing and applying its professional judgment, Craig-Hallum selected the representative ranges of the 25th to 75th percentile for each metric. Craig-Hallum then applied the respective representative ranges to LTM revenue, calendar year 2021 estimated revenue and adjusted EBITDA, and calendar year 2022 estimated revenue and adjusted EBITDA for CSI resulting in ranges of implied total enterprise values. These total enterprise values were further adjusted for Communications Systems, Inc.’s cash to calculate ranges of implied equity values. A summary of these equity value ranges is shown in the table below.

 

78 

 

 

Financial Multiple

 

Representative

Range

 

Implied Equity

Value Reference

Range*

 

 

 

 

 

TEV / LTM Revenue

 

2.1x – 2.8x

 

$109.4 – $141.5

 

 

 

 

 

TEV / CY 2021E Revenue

 

1.9x – 2.6x

 

$110.2 – $143.8

 

 

 

 

 

TEV / CY 2022E Revenue

 

1.5x – 2.1x

 

$102.6 – $136.4

 

 

 

 

 

TEV / CY 2021E Adjusted EBITDA

 

17.8x – 30.3x

 

$54.0 – $76.4

 

 

 

 

 

TEV / CY 2022E Adjusted EBITDA

 

14.2x – 18.2x

 

$76.7 – $92.5

*Dollars in millions

 

Although Craig-Hallum selected the companies reviewed in the analysis because, among other things, their businesses are reasonably similar to that of CSI no selected company is identical to CSI. In evaluating the financial multiples for the selected companies, Craig-Hallum made judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions, and other matters. Accordingly, Craig-Hallum’s comparison of selected companies to CSI and analysis of the results of such comparisons was not purely quantitative, but instead necessarily involved qualitative considerations and professional judgments concerning differences in financial and operating characteristics and other factors that could affect the relative value of CSI.

 

Precedent Transactions Analysis – CSI Stand-Alone

 

Craig-Hallum performed a selected precedent transactions analysis, which is designed to imply a value for a company based on publicly available financial terms of the selected transactions that share some characteristics with the merger. Craig-Hallum reviewed and selected precedent transactions that, in the exercise of its professional judgment, were deemed to be relevant to its analysis after meeting the following criteria: (i) the target company operated in the communication services and/or equipment sectors, (ii) transactions that closed since January 1, 2015, with publicly available financial terms, (iii) the target company’s implied enterprise value was less than $10 billion, and (iv) the acquisition was not of a minority interest. In its analysis, Craig-Hallum reviewed the following precedent transactions as of the closing date:

 

Target

 

Acquirer

 

Close Date

 

 

 

 

 

Mellanox Technologies, Ltd.

 

NVIDIA Corporation

 

04/27/20

 

 

 

 

 

ARRIS International plc

 

CommScope Holding Company, Inc.

 

04/04/19

 

 

 

 

 

Brocade Communications Systems LLC

 

LSI Corporation; Broadcom Corporation

 

11/17/17

 

 

 

 

 

Sandvine Corporation

 

Procera Networks, Inc.

 

09/21/17

 

 

 

 

 

MRV Communications, Inc.

 

ADVA Optical Networking SE

 

08/11/17

 

 

 

 

 

Broadview Networks Holdings, Inc.

 

Windstream Holdings, Inc.

 

07/28/17

 

 

 

 

 

eDevice SA

 

iHealthLabs Europe SARL

 

09/02/16

 

 

 

 

 

Emulex Corporation

 

Avago Technologies Wireless Manufacturing LLC

 

05/05/15

 

For each precedent transaction indicated above, using publicly available company filings, Capital IQ and press releases, Craig-Hallum calculated multiples of TEV using the target company’s LTM revenue as well as next twelve months (“NTM”) revenue and adjusted EBITDA as of the close date. LTM adjusted EBITDA was not considered in

 

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this analysis given CSI’s net operating loss position for the LTM period. From this analysis, Craig-Hallum derived the 25th and 75th percentiles for the selected precedent transactions set forth in the following table:

 

Financial Multiple

 

25th

Percentile

 

Median

 

75th

Percentile

 

 

 

 

 

 

 

TEV / LTM Revenue

 

1.0x

 

1.9x

 

4.0x

 

 

 

 

 

 

 

TEV / NTM Revenue

 

1.4x

 

2.3x

 

2.5x

 

 

 

 

 

 

 

TEV / NTM Adjusted EBITDA

 

8.7x

 

8.7x

 

12.1x

 

In reviewing this analysis, Craig-Hallum also considered, among other things, the relative comparability of the precedent transactions and targets to the merger and CSI. Based on the foregoing and applying its professional judgment, Craig-Hallum selected the representative ranges of the 25th to 75th percentile for each metric. Craig-Hallum applied the respective LTM multiples from the precedent transactions to Communications Systems, Inc.’s calendar year 2020 preliminary revenue and NTM multiples to CSI’s calendar year 2021 estimated revenue and adjusted EBITDA, resulting in ranges of implied total enterprise values. These total enterprise values were further adjusted for CSI’s cash to calculate ranges of implied equity values shown in the table below.

 

Financial Multiple

 

Representative

Range

 

Implied Equity

Value Reference

Range*

 

 

 

 

 

TEV / LTM Revenue

 

1.0x – 4.0x

 

$64.7 – $193.6

 

 

 

 

 

TEV / NTM Revenue

 

1.4x – 2.5x

 

$88.8 – $143.1

 

 

 

 

 

TEV / NTM Adjusted EBITDA

 

8.7x – 12.1x

 

$37.5 – $43.7

*Dollars in millions

 

No target company or transaction utilized in the selected precedent transactions analysis is identical to CSI nor the merger. In evaluating the precedent transactions, Craig-Hallum made judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions, and other matters, many of which are beyond the control of CSI, such as the impact of competition on the business of CSI or the industry generally, industry growth and the absence of any adverse material change in the financial condition and prospects of CSI the industry or in the financial markets in general.

 

Discounted Cash Flow Analysis – CSI Stand-Alone

 

Craig-Hallum conducted a discounted cash flow analysis for CSI on a stand-alone basis, which is designed to estimate the implied value of a company by calculating the present value of the estimated future unlevered free cash flows and terminal value of the company. Craig-Hallum calculated a range of implied equity values of CSI based on forecasts of future unlevered free cash flows for the remainder of fiscal year 2021 as of March 1, 2021, through fiscal year 2025 provided by the management of CSI. Craig-Hallum first calculated unlevered free cash flows (calculated as earnings before interest and taxes, less taxes, plus depreciation and amortization, less the amount of any increase or plus the amount of any decrease in net working capital, less capital expenditures and less any acquisition costs) of CSI for fiscal years 2021 to 2025, using an assumed tax rate of 26.0%.

 

Craig-Hallum then calculated terminal values for CSI using the terminal value method based on revenue and adjusted EBITDA multiples. The terminal value based on revenue multiples was calculated by applying a range of terminal LTM revenue multiples of 1.5x to 2.5x (selected based on Craig-Hallum’s professional judgment after consideration of the precedent M&A transactions multiples and comparable public company multiples) to CSI management’s revenue forecast for fiscal year 2025. The terminal value based on adjusted EBITDA multiples was calculated by applying a range of terminal LTM adjusted EBITDA multiples of 11.0x to 13.0x (selected based on Craig-Hallum’s professional judgment after consideration of the precedent M&A transactions multiples and comparable public company multiples) to CSI management’s adjusted EBITDA forecast for fiscal year 2025. In

 

80 

 

 

addition, Craig-Hallum added CSI’s net operating loss carryforwards expected to be utilized CSI’s management to reduce future domestic federal and state taxes, in each case based on internal estimates of CSI’s management.

 

These unlevered free cash flows, terminal values and net operating loss carryforwards were then discounted to their respective present values as of March 1, 2021, using a range of discount rates of 16.0% to 20.0% (selected based on Craig-Hallum’s professional judgment and derived from an analysis of the estimated weighted average cost of capital using CSI comparable company data) to calculate a range of implied total enterprise values for CSI. These total enterprise values were further adjusted for CSI’s cash to calculate ranges of implied equity values. From this analysis, Craig-Hallum derived the 25th and 75th percentiles for the values produced from the discounted cash flow analysis set forth in the following table:

 

Discounted Cash Flow

Analysis

 

Implied Equity

Value Reference

Range*

 

 

 

Terminal Revenue Method

 

$86.4 – $108.4

 

 

 

Terminal EBITDA Method

 

$101.1 – $108.0

 

* Dollars in millions

 

 

Comparable Public Company Analysis – Pineapple Stand-Alone 

 

Craig-Hallum reviewed and compared certain financial information for Pineapple to corresponding financial information, ratios and public market multiples for the following publicly traded companies, which, in the exercise of its professional judgment, Craig-Hallum determined to be relevant to its analysis. In selecting comparable public companies, Craig-Hallum focused on businesses in the residential solar and clean technology industries.

 

Selected Companies:

 

Residential Solar

 

 

Sunnova Energy International Inc.

 

 

SunPower Corporation

 

 

Sunrun Inc.

 

Clean Technology

 

 

Ballard Power Systems Inc.

 

 

Blink Charging Co.

 

 

Bloom Energy Corporation

 

 

Clean Energy Fuels Corp.

 

 

Enphase Energy, Inc.

 

 

FuelCell Energy, Inc.

 

 

Plug Power Inc.

 

 

SolarEdge Technologies, Inc.

 

 

TPI Composites, Inc.

 

 

Westport Fuel Systems Inc.

 

Craig-Hallum obtained financial metrics and projections for the selected companies from SEC EDGAR and Capital IQ. In its analysis, Craig-Hallum derived and compared multiples for the selected companies, calculated as follows:

 

 

TEV as a multiple of estimated revenue for calendar year 2021 (“CY 2021E”)

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TEV as a multiple of estimated revenue for calendar year 2022 (“CY 2022E”)

 

TEV refers to market capitalization—calculated utilizing the treasury stock method—plus all outstanding debt, plus preferred stock, plus any minority interest and less cash and cash equivalents (“net debt”). Adjusted EBITDA refers to earnings before interest, taxes, depreciation, amortization, stock-based compensation and any other expenses deemed to be non-recurring in nature. This analysis indicated the following:

 

Financial Multiple

 

25th

Percentile*

 

Median*

 

75th

Percentile*

 

 

 

 

 

 

 

TEV / CY 2021E Revenue

 

4.5x

 

8.5x

 

14.5x

TEV / CY 2022E Revenue

 

4.9x

 

10.2x

 

29.6x

 

In reviewing this analysis, Craig-Hallum also considered, among other things, the relative comparability of the selected companies to Pineapple. Based upon the foregoing and applying its professional judgment, Craig-Hallum selected the representative ranges of the 25th to 75th percentile for each metric. Craig-Hallum then applied the respective representative ranges to the estimated calendar year 2021 and calendar year 2022 revenue figures for Pineapple, resulting in ranges of implied total enterprise values. These total enterprise values were further adjusted for Pineapple’s net debt to calculate ranges of implied equity values. A summary of these equity value ranges is shown in the table below.

 

Financial Multiple

 

Representative

Range

 

Implied Equity

Value Reference

Range*

 

 

 

 

 

TEV / CY 2021E Revenue

 

4.5x – 14.5x

 

$175.7 – $593.2

TEV / CY 2022E Revenue

 

4.9x – 29.6x

 

$365.4 – $2,248.9

 

* Dollars in millions

 

Although Craig-Hallum selected the companies reviewed in the analysis because, among other things, their businesses are reasonably similar to that of Pineapple, no selected company is identical to Pineapple. In evaluating the financial multiples for the selected companies, Craig-Hallum made judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions, and other matters. Accordingly, Craig-Hallum’s comparison of selected companies to Pineapple and analysis of the results of such comparisons was not purely quantitative, but instead necessarily involved qualitative considerations and professional judgments concerning differences in financial and operating characteristics and other factors that could affect the relative value of Pineapple.

 

Precedent Transactions Analysis – Pineapple Stand-Alone

 

Craig-Hallum performed a selected precedent transactions analysis, which is designed to imply a value for a company based on publicly available financial terms of the selected transactions that share some characteristics with the merger. Craig-Hallum reviewed and selected precedent transactions that, in the exercise of its professional judgment, were deemed to be relevant to its analysis after meeting the following criteria: (i) the target company operated in the residential solar and/or clean technology sectors, (ii) transactions that closed since January 1, 2015, with publicly available financial terms, (iii) the target company’s implied enterprise value was less than $5 billion, and (iv) the acquisition was not of a minority interest. In its analysis, Craig-Hallum reviewed the following precedent transactions as of the closing date:

 

Target

 

Acquirer

 

Close Date

 

 

 

 

 

Vivint Solar, Inc.

 

Sunrun Inc.

 

10/08/20

 

 

 

 

 

Hydrogenics Corporation

 

Cummins Inc.

 

09/09/19

 

 

 

 

 

UQM Technologies, Inc.

 

Danfoss Power Solutions (US) Company

 

07/31/19

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Target 

 

Acquirer 

 

Close Date 

 

 

 

 

 

Maxwell Technologies, Inc.

 

Tesla, Inc.

 

05/15/19

 

 

 

 

 

Chargemaster plc

 

BP p.l.c.

 

07/31/18

 

 

 

 

 

Younicos AG

 

Aggreko Plc

 

07/03/17

 

 

 

 

 

Proton Energy Systems, Inc.

 

Nel ASA

 

06/30/17

 

 

 

 

 

Saft Groupe S.A.

 

TOTAL S.A.

 

08/15/16

 

 

 

 

 

Protonex Technology Corporation

 

Ballard Power Systems Inc.

 

10/01/15

 

 

 

 

 

Polypore International, Inc.

 

Asahi Kasei Corporation

 

08/26/15

 

For each precedent transaction indicated above, using publicly available company filings, Capital IQ and press releases, Craig-Hallum calculated multiples of TEV using the target company’s NTM revenue as of the close date. From this analysis, Craig-Hallum derived the 25th and 75th percentiles for the selected precedent transactions set forth in the following table:

 

Financial Multiple

 

25th

Percentile

 

Median

 

75th

Percentile

 

 

 

 

 

 

 

TEV / NTM Revenue

 

3.0x

 

 

4.7x

 

 

5.1x

 

 

In reviewing this analysis, Craig-Hallum also considered, among other things, the relative comparability of the precedent transactions and targets to the merger and Pineapple. Based on the foregoing and applying its professional judgment, Craig-Hallum selected the representative ranges of the 25th to 75th percentile for each metric. Craig-Hallum applied the respective NTM multiples from the precedent transactions to Pineapple’s calendar year 2021 estimated revenue, resulting in a range of implied total enterprise values. These total enterprise values were further adjusted for Pineapple’s net debt to calculate a range of implied equity values shown in the table below.

 

Financial Multiple

 

Representative

Range

 

Implied Equity

Value Reference

Range*

 

 

 

 

 

TEV / NTM Revenue

 

3.0x – 5.1x

 

$115.2 – $199.1

 

* Dollars in millions

 

No target company or transaction utilized in the selected precedent transactions analysis is identical to Pineapple nor the merger. In evaluating the precedent transactions, Craig-Hallum made judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions, and other matters, many of which are beyond the control of Pineapple, such as the impact of competition on the business of Pineapple or the industry generally, industry growth and the absence of any adverse material change in the financial condition and prospects of Pineapple, the industry or in the financial markets in general.

 

Discounted Cash Flow Analysis – Pineapple Stand-Alone

 

Craig-Hallum conducted a discounted cash flow analysis for Pineapple on a stand-alone basis, which is designed to estimate the implied value of a company by calculating the present value of the estimated future unlevered free cash flows and terminal value of the company. Craig-Hallum calculated a range of implied equity values of Pineapple based on forecasts of future unlevered free cash flows for the remainder of fiscal year 2021 as of March 1, 2021, through fiscal year 2025 provided by the management of Pineapple. Craig-Hallum first calculated unlevered free cash flows (calculated as earnings before interest and taxes, less taxes, plus depreciation and amortization, less capital expenditures, and less the amount of any increase or plus the amount of any decrease in net working capital) of Pineapple for fiscal years 2021 to 2025, using an assumed tax rate of 26.0%.

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Craig-Hallum then calculated terminal values for Pineapple using the terminal value method based on revenue multiples. The terminal value was calculated by applying a range of terminal LTM revenue multiples of 4.25x to 5.25x (selected based on Craig-Hallum’s professional judgment after consideration of the precedent M&A transactions multiples and comparable public company multiples) to Pineapple management’s revenue forecast for fiscal year 2025.

 

These unlevered free cash flows and terminal values were then discounted to their respective present values as of March 1, 2021, using a range of discount rates of 18.0% to 22.0% (selected based on Craig-Hallum’s professional judgment and derived from an analysis of the estimated weighted average cost of capital using Pineapple comparable company data) to calculate a range of implied total enterprise values for Pineapple. These total enterprise values were further adjusted for Pineapple’s net debt to calculate ranges of implied equity values. From this analysis, Craig-Hallum derived the 25th and 75th percentiles for the values produced from the discounted cash flow analysis set forth in the following table:

 

Discounted Cash Flow

Analysis

 

Implied Equity

Value Reference

Range*

 

 

 

Terminal Revenue Method

 

$307.3 – $348.8

 

* Dollars in millions

 

Relative Contribution Analysis

 

Craig-Hallum performed a relative contribution analysis for CSI and Pineapple based on the valuation methodologies described above. In performing the relative contribution analysis, Craig-Hallum compared the range of stand-alone implied equity values for each company derived from the range of median values calculated for each of the comparable public companies, selected precedent transactions and discounted cash flow analyses. Craig-Hallum then compared these ranges to generate the implied relative contribution for each company for each analysis before comparing the implied relative contribution ranges to the shares of CSI to be issued in the merger without the earn-out of contingent consideration outlined in the merger agreement and with full earn-out provided for under the merger agreement. “Without earn-out” assumes a total consideration to Pineapple of 20.6 million shares, including the base consideration of 15.6 million shares as well as 5 million additional shares underlying the issuance of $10 million of convertible notes by Pineapple between signing and closing with a conversion price of $2.00 per share. “Full earn-out” assumes the same total consideration as the “without earn-out” scenario as well as all additional shares to be issued to Pineapple as defined in the merger agreement that are subject to further conditions being met post-merger. This includes an additional 3 million shares contingent upon the payoff of all pre-closing debt by Pineapple within three months of the merger closing and 10 million shares subject to the achievement of both the $6.00 and $8.00 30-day VWAP milestones by the 24-month anniversary of the merger closing and achievement of the disposition milestone by the 18-month anniversary of the merger closing, for an aggregate quantity of additional contingent consideration to Pineapple of 13 million shares. Thus, the “full earn-out” scenario assumes a total consideration to Pineapple post-merger of 33.6 million shares.

 

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84 

 

 

 

 

Implied Equity Value

 

Implied Relative Contribution

 

 

Communications

Systems, Inc.

 

Pineapple

 

Communications

Systems, Inc.

 

Pineapple

Methodology

 

Range of Medians(1)

 

Range of Medians(1)

 

Range of Medians(1)

 

Range of Medians(1)

                                 

Comparable Company

 

$62.9

$122.7

 

$343.7

$767.3

 

7.6%

26.3%

 

73.7%

92.4%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Precedent Transactions

 

$37.6

$132.5

 

$182.2

$182.2

 

17.1%

42.1%

 

57.9%

82.9%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Discounted Cash Flow

 

$97.9

$104.5

 

$329.1

$329.1

 

22.9%

24.1%

 

75.9%

77.1%

 

 

Transaction Consideration Without Earn-Out

32.5%

 

67.5%

 

 

Transaction Consideration With Full Earn-Out

22.8%

 

77.2%

 

* Dollars in millions

 

(1) Based on median multiples and the corresponding range for each valuation methodology

 

Implied Multiples Analysis

 

Craig-Hallum also performed an implied multiples analysis based on the valuation methodologies described above. Using the most recent close price of CSI as of March 1, 2021, Craig-Hallum determined the implied equity value of Pineapple both without earn-out and with full earn-out, as described above. These implied equity values were further adjusted for Pineapple’s debt and cash—assuming that Pineapple issues $10 million of convertible notes between signing and closing—to calculate an implied enterprise value for each scenario. Craig-Hallum then calculated the following implied enterprise value multiples for Pineapple both without earn-out and with full earn-out: i) TEV as a multiple of estimated revenue for calendar year 2021 (“CY 2021E”) and ii) TEV as a multiple of estimated revenue for calendar year 2022 (“CY 2022E”). Finally, these implied multiples for Pineapple were compared to the financial multiples calculated in Pineapple’s comparable public companies and selected precedent transactions analyses outlined above, and the range of implied equity values for Pineapple calculated both without earn-out and with full earn-out was compared to the range of implied equity values from Pineapple’s discounted cash flow analysis outlined above.

 

Comparable Public Company Analysis

 

 

Pineapple Implied Multiples

 

Comparable Companies

 

 

Without

 

With Full

 

 

 

 

 

 

 

 

Residential Solar & Clean Technology

 

Earn-Out

 

Earn-Out(1)(2)

 

Min

 

Median

 

Mean

 

Max

                         

TEV(1) / CY 2021E Revenue

 

2.9 x

 

4.6 x

 

1.2 x

 

8.5 x

 

11.3 x

 

34.7 x

TEV(1) / CY 2022E Revenue

 

1.6 x

 

2.5 x

 

1.1 x

 

10.2 x

 

18.3 x

 

48.6 x

 

Comparable M&A Transactions Analysis

 

 

Pineapple Implied Multiples

 

Comparable M&A Transactions

 

 

Without

 

With Full

 

 

 

 

 

 

 

 

Residential Solar & Clean Technology

 

Earn-Out

 

Earn-Out(1)(2)

 

Min

 

Median

 

Mean

 

Max

                         

TEV(1) / NTM Revenue(3)

 

2.9 x

 

4.6 x

 

1.2 x

 

4.7 x

 

4.6 x

 

9.4 x

 

Discounted Cash Flow Analysis*

 

Pineapple Implied Equity Value Range:

$110.2 - $179.8

 

 

Revenue Multiple

 

 

 

4.25x

4.50x

4.75x

5.00x

5.25x

 

 

 

 

 

 

 

 

 

 

 

 

 

 

18.0%

 

$

320.4

$

339.0

$

357.6

$

376.2

$

394.7

 

19.0%

 

$

307.3

$

325.2

$

343.0

$

360.8

$

378.7

Discount Rate @

20.0%

 

$

294.8

$

312.0

$

329.1

$

346.2

$

363.4

 

21.0%

 

$

283.0

$

299.4

$

315.9

$

332.3

$

348.8

 

22.0%

 

$

271.6

$

287.4

$

303.3

$

319.1

$

334.9

 

* Dollars in millions

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(1)

Assumes Pineapple issues $10 million of convertible notes between signing and closing with a conversion price of $2.00

(2)

Assumes i) full achievement of the $6.00 and $8.00 30-day VWAP/disposition event milestones by the 18-month anniversary of the merger closing and ii) payoff of pre-closing Pineapple debt within 3 months of closing

(3)

NTM multiples applied to Pineapple’s CY 2021E figures

 

Miscellaneous

 

The foregoing summary of material financial analyses does not purport to be a complete description of the analyses or data presented by Craig-Hallum. The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Craig-Hallum believes that the summary set forth above and its analyses must be considered as a whole and that selecting portions of it, without considering all of its analyses, could create an incomplete view of the processes underlying the analyses and its opinion. No single factor or analysis was determinative of Craig-Hallum’s fairness determination. Rather, Craig-Hallum considered the totality of the factors and analyses performed in arriving at its opinion. Craig-Hallum based its analyses on assumptions that it deemed reasonable, including those concerning general business and economic conditions and industry-specific factors. The other principal assumptions upon which Craig-Hallum based its analysis have been described under the description of each analysis in the foregoing summary. Analyses based upon forecasts of future results are inherently uncertain, as they are subject to numerous factors or events beyond the control of the parties and their advisors. Accordingly, forecasts and analyses used or made by Craig-Hallum are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by those analyses. Moreover, Craig-Hallum’s analyses are not, and do not, purport to be appraisals or otherwise reflective of the prices at which securities may trade at the present time or at any time in the future or at which businesses actually could be bought or sold.

 

As part of its investment banking business, Craig-Hallum and its affiliates are continually engaged in the valuation of businesses and their securities in connection with mergers and acquisitions. Craig-Hallum was selected as financial advisor to the Board of Directors of CSI on the basis of Craig-Hallum’s experience and its familiarity with CSI and the industry in which it operates.

 

Under the terms of the engagement letter dated February 5, 2021, CSI has agreed to pay Craig-Hallum a fee of $300,000 for rendering its opinion, which fee would be reduced by $100,000 upon CSI management’s request should a decision be made not to proceed with the transaction or any other reason. In addition, CSI has agreed to reimburse Craig-Hallum for reasonable expenses incurred in connection with the engagement and to indemnify Craig-Hallum against certain liabilities that may arise out of its engagement by CSI and the rendering of the opinion. In the ordinary course of business, Craig-Hallum and its affiliates may actively trade or hold the securities of CSI or any of their affiliates for Craig-Hallum’s account or for others and, accordingly, may at any time hold a long or short position in such securities.

 

Craig-Hallum’s analyses were prepared solely as part of Craig-Hallum’s analysis of the fairness, from a financial point of view, to CSI of the consideration to be paid by CSI under the terms of the merger agreement and were provided to the CSI board of directors for its analysis of the merger agreement and the merger. The opinion of Craig-Hallum was only one of the factors taken into consideration by the CSI board of directors in making its determination to approve the merger agreement and the merger.

 

In the ordinary course of its business, Craig-Hallum and its affiliates may actively trade securities of CSI for its own account or the account of its customers and, accordingly, may at any time hold a long or short position in such securities. Craig-Hallum has not received fees or other compensation from CSI or Pineapple in the past two years prior to the issuance of its opinion. Craig-Hallum and its affiliates may from time to time perform various investment banking and financial advisory services for CSI and for other clients and customers that may have conflicting interests with CSI, for which Craig-Hallum would expect to receive compensation.

 

Consistent with applicable legal and regulatory requirements, Craig-Hallum has adopted policies and procedures to establish and maintain the independence of Craig-Hallum’s research department and personnel. As a result, Craig-Hallum’s research analysts may hold opinions, make statements or investment recommendations and/or publish research reports with respect to the transaction and other participants in the transaction that differ from the opinions of Craig-Hallum’s investment banking personnel.

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Certain Financial Forecasts Utilized in Connection with the Merger

 

Each year our management provides the CSI board of directors certain estimates of projected financial results as part of our budget and planning processes. 

 

In connection with the evaluation of the merger, however, CSI management prepared the CSI Financial Forecasts which are summarized in the below table. The CSI Financial Forecasts set forth below are included in this proxy statement/prospectus only because this information was presented to and discussed with the CSI board of directors as part of its consideration of the Pineapple Merger Transaction. The CSI Financial Forecasts were provided to Craig-Hallum, the CSI board’s financial advisor, for its use and reliance in connection with Craig-Hallum’s financial analyses and opinion dated March 1, 2021 as described in the section entitled “Opinion of the Financial Advisor to the CSI Board of Directors.”

 

In connection with the evaluation of the merger, Pineapple management prepared the Pineapple Financial Forecasts which also are summarized in the below table and reflect the combined forecasted financial results of Pineapple, HEC and E-Gear as if Pineapple had acquired HEC and E-Gear at the beginning of the forecast period. The Pineapple Financial Forecasts set forth below are included in this proxy statement/prospectus only because this information was presented to and discussed with the CSI board of directors as part of its consideration of the Pineapple Merger Transaction. The Pineapple Financial Forecasts also were provided to Craig-Hallum, the CSI board’s financial advisor, for its use and reliance in connection with Craig-Hallum’s financial analyses and opinion as described in the section entitled “Opinion of the Financial Advisor to the CSI Board of Directors.”

 

The projected results described below were prepared by management of CSI and Pineapple, respectively, and were not prepared with a view towards public disclosure. These projections do not purport to present the results of operations in accordance with generally accepted accounting principles. No independent auditor has examined or compiled the projections and accordingly, assume no responsibility for them. CSI’s internal financial projections are, in general, prepared solely for internal use and budgeting and other management decisions and are subjective in many respects and thus susceptible to interpretations and periodic revision based on actual experience and business developments. Both the CSI Financial Forecasts and the Pineapple Financial Forecasts also reflect numerous assumptions made by each company’s respective management with respect to the financial performance of CSI, on the one hand, and Pineapple, HEC and E-Gear, on the other hand, including the continuing effects of competition, industry performance, general business, economic, market and financial conditions, and other matters, all of which are difficult to predict and many of which are beyond either company’s control. Accordingly, there can be no assurance that either the CSI Financial Forecasts or the Pineapple Financial Forecasts would be necessarily realized, either on a standalone or combined basis.

 

Additionally, neither the CSI Financial Forecasts nor the Pineapple Financial Forecasts have been updated or adjusted for matters that have arisen since the respective dates they were prepared.

 

CSI Financial Forecasts

 

CSI Financial Forecasts

2021E

2022E

2023E

2024E

2025E

 

$ in millions

Sales

$47.5

$54.5

$61.6

$70.8

$79.2

Gross Profit

$17.3

$25.1

$29.6

$35.4

$40.7

Operating income (loss)

$(0.0)

$2.1

$5.1

$9.4

$12.7

Adjusted EBITDA (1)

$1.8

$3.9

$6.9

$11.1

$14.4

Unlevered Free Cash Flows (2)

$2.4

$(3.4)

$0.5

$2.9

$4.9

 

 

 

 

(1)

EBITDA refers to operating income before interest, taxes, depreciation and amortization. For CSI, adjusted EBITDA excludes stock-based compensation expense.

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(2)

Unlevered free cash flows were calculated by taking CSI operating income after tax, adding back depreciation and amortization, subtracting capital expenditures, adjusting for changes in working capital, and subtracting acquisition costs.

 

The CSI Financial Forecasts include adjusted EBITDA, a financial measure that is not prepared in accordance with generally accepted accounting principles in the United States (non-GAAP), which excludes interest, taxes, depreciation and amortization from net income, as well as stock-based compensation expense. For the purposes of the CSI Financial Forecasts, CSI calculated adjusted EBITDA by starting with operating income, which does not include the impact of interest or taxes, and adding back depreciation, amortization and stock-based compensation expense. CSI has reconciled the non-GAAP financial measure used in the CSI Financial Forecasts with the most directly comparable GAAP financial measure. CSI management believes that the non-GAAP financial measure not only provides CSI management with comparable financial data for internal financial analysis but also allows investors to better understand the performance of the company on a period-over-period basis from the same perspective as management. However, other companies may calculate these non-GAAP financial measures differently than CSI does. Investors should not consider the non-GAAP financial measures in isolation or as a substitute for analysis of CSI’s results or projections as reported under GAAP. CSI’s presentation of non-GAAP financial measures should not be construed to imply that CSI’s future results will be unaffected by the adjustments made to calculate adjusted EBITDA, such as interest, taxes, depreciation, amortization, and stock-based compensation expense.

 

CSI Non-GAAP Reconciliation

2021E

2022E

2023E

2024E

2025E

 

$ in millions

Operating Income

$(0.0)

$2.1

$5.1

$9.4

$12.7

Depreciation and Amortization

$1.1

$1.0

$1.0

$0.8

$0.8

Stock-Based Compensation Expense

$0.7

$0.8

$0.8

$0.9

$0.9

Adjusted EBITDA

$1.8

$3.9

$6.9

$11.1

$14.4

 

Pineapple Financial Forecasts

 

Pineapple Financial Forecasts

2021E

2022E

2023E

2024E

2025E

 

$ in millions

Revenue

$41.5

$76.2

$109.8

$140.8

$165.5

Gross Profit

$17.2

$27.2

$38.2

$50.1

$56.5

Operating Income

$2.4

$5.3

$9.7

$15.6

$17.3

EBITDA (1)

$2.8

$5.8

$10.3

$16.3

$18.0

Unlevered Free Cash Flows (2)

$1.1

$2.1

$3.8

$11.0

$10.8

 

 

 

 

(1)

EBITDA refers to operating income before interest, taxes, depreciation and amortization. 

 

 

(2)

Unlevered free cash flows were calculated by taking Pineapple, HEC and E-Gear combined operating income after tax, adding back depreciation and amortization, subtracting capital expenditures, and adjusting for changes in working capital.

 

The Pineapple Financial Forecasts include EBITDA, a financial measure that is not prepared in accordance with GAAP, which excludes interest, taxes, depreciation and amortization from net income. For the purposes of the Pineapple Financial Forecasts, Pineapple calculated EBITDA by starting with the combined operating income of Pineapple, HEC and E-Gear, which does not include the impact of interest or taxes, and adding back combined company depreciation and amortization. Pineapple has reconciled the non-GAAP financial measure used in the

 

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Pineapple Financial Forecasts with the most directly comparable GAAP financial measure. Pineapple management believes that the non-GAAP financial measure not only provides Pineapple management with comparable financial data for internal financial analysis but also allows investors to better understand the performance of the company on a period-over-period basis from the same perspective as management. However, other companies may calculate these non-GAAP financial measures differently than Pineapple does. Investors should not consider the non-GAAP financial measures in isolation or as a substitute for analysis of the results of Pineapple, HEC and E-Gear or projections as reported under GAAP. Pineapple’s presentation of non-GAAP financial measures should not be construed to imply that the future results of Pineapple, HEC and E-Gear will be unaffected by the adjustments made to calculate EBITDA, such as interest, taxes, depreciation, and amortization.

 

Pineapple Non-GAAP Reconciliation

2021E

2022E

2023E

2024E

2025E

 

$ in millions

Operating Income

$2.4

$5.3

$9.7

$15.6

$17.3

Depreciation and Amortization

$0.4

$0.5

$0.6

$0.7

$0.8

EBITDA

$2.8

$5.8

$10.3

$16.3

$18.0

 

The projected results described above were not prepared with a view to public disclosure or compliance with published guidelines of the Securities and Exchange Commission or the guidelines established by the American Institute of Certified Public Accountants regarding forecasts or projections. These projections are forward-looking statements and are based on expectations and assumptions at the time they were prepared by CSI management or Pineapple management, respectively. The projections above involve risks and uncertainties that could cause actual outcomes and results to differ materially from such expectations, including risks and uncertainties described under “CAUTION CONCERNING FORWARD-LOOKING STATEMENTS” and “RISK FACTORS.” There can be no assurance that the assumptions and adjustments made in preparing the projected financials results above will prove appropriate, or that the projected financial results necessarily will be realized. There will be differences between actual and projected results, and actual results may be materially greater or less than those contained in the projected results above. The inclusion of these projections should not be regarded as an indication that CSI or Pineapple or their respective affiliates or representatives, considered or consider the projections to be an actual prediction of future events, and the projections should not be relied upon as such. Neither CSI nor Pineapple or their respective affiliates or representatives has made or makes any representations to any person regarding the ultimate performance of CSI, Pineapple or the combined company compared to the information contained in the projected financial results, and none of them intends to provide any update or revision thereof.

 

When the Pineapple Merger Transaction is Expected to be Completed

 

We expect to complete the Pineapple Merger Transaction promptly after all of the closing conditions in the merger agreement, including approval of the Pineapple Merger Proposal by our shareholders. Subject to the uncertainty concerning the satisfaction or waiver of these conditions, we expect the Pineapple Merger Transaction to close by
               . However, there can be no assurance that the Pineapple Merger Transaction will be completed at all or, if completed, when it will be completed.

 

Effects on CSI if the Pineapple Merger Transaction is Completed and the Nature of Our Business Following the Transaction

 

If the Pineapple Merger Transaction is completed, we will rename our company Pineapple Holdings, Inc. and our common stock will trade under the new symbol “PEGY”. Our business will focus on the rapidly growing home solar industry, with subsidiary operations consisting of the Pineapple, HEC and E-Gear businesses, and we will pursue the Pineapple growth strategy of acquiring leading local and regional solar installers around the United States.

 

In connection with the closing of the Pineapple Merger Transaction, CSI will distribute to CSI shareholders of record as of the close of the business day immediately preceding the closing of the merger one non-transferable CVR for each outstanding share of common stock of CSI held as of that time.

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The Pineapple Merger Transaction will not alter the rights, privileges or nature of the issued and outstanding shares of the CSI common stock. A shareholder who owns shares of our common stock immediately prior to the closing of the Pineapple Merger Transaction will continue to hold the same number of shares immediately following the closing. 

 

Prior to and after the closing of the Pineapple Merger Transaction, we expect to continue our efforts to divest substantially all our current operating and non-operating assets as part of our planned strategy to monetize our assets for the benefit of the CSI shareholders and, after the closing of the Pineapple Merger Transaction, the holders of the CVRs.

 

Our SEC reporting obligations as a public company will not be affected as a result of completing the Pineapple Merger Transaction.

 

Effects on CSI if the Pineapple Merger Transaction is Not Completed

 

If the merger agreement is terminated or the merger is not consummated for any reason, it is expected that the CSI board of directors will consider the full range of strategic alternatives regarding the use of its remaining cash and other assets, the S&S Segment business, and the future of CSI, with a view to maximizing value for our shareholders under the circumstances. These strategic alternatives may include pursuing an alternative transaction to the merger, retaining some or all of the cash or other assets, the acquisition of a new business or an investment in the S&S Segment business, adoption of a plan of liquidation, or a combination of these.

 

The merger agreement may be terminated under certain circumstances as set forth in the merger agreement and summarized in this proxy statement/prospectus. Pursuant to the merger agreement, we have agreed to pay Pineapple a termination fee of $2,500,000, plus applicable costs and expenses up to $750,000, if the merger agreement is terminated under certain circumstances. See “THE MERGER AGREEMENT— Termination Fees”.

 

No Appraisal or Dissenters’ Rights

 

No appraisal or dissenters’ rights are available to our shareholders under Minnesota law or CSI’s articles of incorporation or bylaws in connection with any proposal to be presented at the special meeting, including the Pineapple Merger Proposal.

 

Interests of Our Directors and Executive Officers in the Pineapple Merger Transaction

 

In considering the recommendation of our board to vote “FOR” the Pineapple Merger Proposal, you should be aware that, aside from their interests as Company shareholders, our directors and executive officers have interests in the Pineapple Merger Transaction that are different from, or in addition to, the interests of our shareholders generally.

 

Members of our board were aware of and considered these interests, among other matters, in evaluating and negotiating the Pineapple Merger Transaction, and in recommending to our shareholders that the Pineapple Merger Proposal be approved. For more information see the sections entitled “Proposal #1: Pineapple Merger Proposal—Background of the Pineapple Merger Transaction” and “Proposal #1: Pineapple Merger Proposal—Reasons for the Pineapple Merger Transaction and Recommendation of our Board of Directors” above. These interests are described in more detail below, and certain of them are quantified in the narrative below.

 

Indemnification.  The merger agreement provides that from and after the effective time of the merger, the holders of Class A Units and Class P Units of Pineapple as of immediately prior to the effective time of the merger, severally and not jointly, will indemnify, defend and hold harmless CSI and the combined company and each of their respective officers, directors, assigns, successors and controlled affiliates against certain damages, to the extent arising out of or directly caused by any of the following: (a) any breach of certain representations or warranties made by Pineapple in the merger agreement or any certificates delivered by Pineapple pursuant to the merger agreement; (b) any breach or failure by Pineapple to satisfy or perform any covenant or agreement of Pineapple under the merger agreement or any certificates delivered by Pineapple pursuant to the merger agreement; and (c) specified tax liabilities. Any amounts owed would be recovered solely by forfeiture of Lockup Shares and thereafter,

 

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stock consideration received by the Class A Unit and Class P Unit holders of Pineapple in accordance with their respective pro rata shares.

 

Additionally, from and after the effective time of the merger, each member of Pineapple will indemnify, defend and hold harmless each indemnified party described above against all damages, to the extent arising out of or directly caused by any breach of the representations, warranties, covenants, or agreements of such Pineapple member in such Pineapple member’s joinder agreement to the merger agreement.

 

Outstanding Equity Awards. As of the record date, there are no outstanding equity awards under our 2011 Incentive Compensation Plan or otherwise and we do not expect to have any equity awards outstanding at the effective time of the merger.

 

Employment and Change of Control Agreements. We have entered into change of control agreements (“CIC Agreements”) with each named executive officer. The CIC Agreements provide for payment of severance compensation if there is a change in control of CSI and within 24 months following this change of control, there is either an involuntary termination of employment other than for cause, death, disability or retirement or a voluntary termination of employment for good reason (each a “Triggering Event”).

 

The closing of the E&S Sale Transaction on August 2, 2021 constituted a change of control under the CIC Agreements. Additionally, the closing of the Pineapple Merger Transaction will constitute a change of control under the CIC Agreements. The named executive officer will be entitled to severance compensation and the other benefits of the CIC Agreements if a Triggering Event occurs within 24 months following the latest change of control.

 

Mark D. Fandrich, CSI’s Chief Financial Officer is expected to remain in the same role following the closing of the merger and Roger H.D. Lacey, Executive Chairman of CSI, is expected to become chair of the combined company board of directors following the closing of the merger. Additionally, we also do not expect to terminate Scott Fluegge, CSI’s Vice President of Information Technology and Digital Transformation, as he is expected to continue employment following the closing of the merger.

 

The severance benefit is a specified multiple of the executive’s annual compensation at the date of the change of control, payable in a lump sum within 75 days following the date of the Triggering Event. The multiple of the executive’s annual compensation for our named executive officers is as follows: Mr. Lacey, 1.0 times; Mr. Fandrich, 1.5 times; and Mr. Fluegge, 1.0 times. Additionally, each executive will be entitled to receive medical and dental insurance and life insurance substantially in the form and expense to the executive as received by the executive on the date of the Triggering Event.

 

The CIC Agreements provide that the payments made to the executive will be one dollar less than the amount which would cause all payments to the executive (including payments to the executive which are not included in the CIC Agreement) to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code. Executive officers are not entitled to any gross-up payment under CIC Agreements for such excise taxes.

 

The CIC Agreements include provisions requiring each executive to maintain confidentiality of information acquired during the period of employment, to refrain for a period of one year from competing with CSI or soliciting other CSI employees to leave their employment with us and to provide a release of all claims against CSI in exchange for the benefit paid pursuant to the CIC agreement.

 

LTI Plan Awards. As of the record date, there are no outstanding awards under our Long-Term Incentive Plan (“LTI Plan”) and we do not expect to any LTI Plan awards to be outstanding at the effective time of the merger.

 

Golden Parachute Compensation. The table below sets forth the information required by Item 402(t) of Regulation S-K regarding certain compensation that has, will or may be paid or become payable to our named executive officers in connection with the Pineapple Merger Transaction, based on a number of assumptions.

 

Anita Kumar, our former Chief Executive Officer, is not included in the table below as no amounts will have, will or may be paid or become payable to Ms. Kumar in connection with the Pineapple Merger Transaction.  The employment of Ms. Kumar ended on August 1, 2021 in connection with the closing of the E&S Sale Transaction.

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The table below assumes that:

 

 

the Pineapple Merger Transaction was consummated on             , 2021, which is the last practicable date prior to the filing of this proxy statement/prospectus (but see “Employment and Change of Control Agreements” above for a description of the impact of the closing of the E&S Sale Transaction on the CIC Agreements);

 

 

the employment of the named executive officers below is terminated by CSI immediately following the closing of the Pineapple Merger Transaction if it were consummated on             , 2021, which is the last practicable date prior to the filing of this proxy statement/prospectus (but see “Employment and Change of Control Agreements” above for a description of our current intentions relating to the termination of the named executive officers); and

 

 

the compensation levels for the named executive officers at the relevant time are the levels currently in effect and no equity awards are granted to any of the named executive officers prior to the effective time of the merger.

 

Golden Parachute Compensation (1)

Name

 

  Cash ($)(2)

 

  Equity ($)

 

Perquisites /

Benefits ($)(3)

 

  Total

Roger H. D. Lacey

 

$410,301

 

 

$782

 

$411,083

Mark D. Fandrich

 

$646,820

 

 

$15,790

 

$662,610

Scott Fluegge

 

$299,266

 

 

$26,302

 

$325,568

 

(1) There are no tax reimbursement, pension benefits or other payments to the named executive officers that are required to be disclosed in this table pursuant to Item 402(t) of Regulation S-K.

 

(2) The amounts reported in this column represent the cash severance payment that each named executive officer would be entitled to receive under his CIC Agreement, which is a “double trigger” arrangement requiring both a change of control and a qualifying termination of employment within 24 months following the change of control. See the section entitled “Employment and Change of Control Agreements” above for additional details.

 

(3) The amounts reported in this column represent the estimated cost of the employer portion of medical and dental insurance and life insurance premiums payable by CSI under the CIC Agreements assuming a qualifying termination of the named executive officer’s employment within 24 months following the change of control as described in note 2 above.

 

Nasdaq Listing

 

CSI common stock is currently listed on Nasdaq under the symbol “JCS.” CSI has agreed with Pineapple to reasonably cooperate in good faith to cause the shares of CSI common stock being issued in connection with the merger to be approved for listing on Nasdaq at or after the effective time of the merger.

 

CSI is required to file an initial listing application with Nasdaq pursuant to Nasdaq “business combination” rules. If this application is accepted, CSI anticipates that the shares of CSI common stock will be listed on Nasdaq following the closing of the merger under the trading symbol “PEGY.” In order to meet the requirements for listing on Nasdaq, the post-merger combined company will be required to satisfy Nasdaq’s initial listing requirements, including the financial and liquidity requirements for the applicable Nasdaq market tier upon which the post-merger combined company’s shares will trade following the merger.

 

Anticipated Accounting Treatment

 

We expect that the merger will be accounted for as a “reverse recapitalization” under generally accepted accounting principles in the United States of America. Under this method of accounting, CSI will be treated as the “acquired” company for financial reporting purposes. This determination is based on a preponderance of factors indicating that

 

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Pineapple is the accounting acquirer, including the fact that Pineapple’s ownership in the combined company would constitute a majority ownership and Pineapple has designated the chief executive officer of the combined company. Accordingly, for accounting purposes, the merger will be treated as the equivalent of Pineapple issuing shares for the net assets of CSI, accompanied by a recapitalization. The net assets of CSI will be recorded at their fair value and goodwill and intangible assets will be recorded at their respective fair values. Operations prior to the merger will be those of Pineapple. For further information, see “UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION” attached to this proxy statement/prospectus as Appendix F.

 

Certain Material U.S. Federal Income Tax Consequences of the Merger

 

Due to the legal and factual uncertainties regarding the U.S. federal income tax treatment of the merger, Pineapple U.S. Holders (as defined below) are urged to consult their tax advisors regarding the tax consequences to them of the merger and the timing and characterization of income, gain or loss resulting from the merger and the Earnout Consideration (if any) pursuant to the merger agreement.

 

The following discussion is a summary of the material U.S. federal income tax consequences of the merger to Pineapple U.S. Holders that exchange an equity interest in Pineapple for shares of CSI common stock and cash pursuant to the merger, but this discussion does not purport to be a complete analysis of all potential tax consequences that may be relevant to a Pineapple U.S. Holder. The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local or non-U.S. tax laws, are not discussed. This discussion does not address the tax consequences to holders of options, restricted stock units or similar rights to acquire CSI common stock. This discussion is based on the Code, Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the IRS, in each case in effect as of the date hereof. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a Pineapple U.S. Holder. CSI has not sought and does not intend to seek any rulings from the IRS regarding the matters discussed below. There can be no assurance the IRS or a court will not take a position contrary to that discussed below regarding the tax consequences of the merger.

 

This discussion is limited to Pineapple U.S. Holders that hold an equity interest in Pineapple as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to a Pineapple U.S. Holder’s particular circumstances, including the impact of the alternative minimum tax or the Medicare contribution tax on net investment income. In addition, it does not address consequences relevant to Pineapple U.S. Holders subject to special rules, including, without limitation:

 

 

brokers, dealers or traders in securities; banks; insurance companies; other financial institutions; mutual funds;

 

 

real estate investment trusts; regulated investment companies; tax-exempt organizations or governmental organizations;

 

 

pass-through entities such as partnerships, S corporations, disregarded entities for federal income tax purposes and limited liability companies (and investors therein);

 

 

persons who are not “United States persons” within the meaning of Section 7701(a)(30) of the Code;

 

 

shareholders who are subject to the alternative minimum tax provisions of the Code;

 

 

persons who hold their equity interest in Pineapple as part of a hedge, wash sale, synthetic security, conversion transaction, or other integrated transaction;

 

 

persons that have a functional currency other than the U.S. dollar; traders in securities who elect to apply a mark-to-market method of accounting;

 

 

persons who hold equity interest in Pineapple that may constitute “qualified small business stock” under Section 1202 of the Code or as “Section 1244 stock” for purposes of Section 1244 of the Code;

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persons who acquired equity interest in Pineapple in a transaction subject to the gain rollover provisions of Section 1045 of the Code;

 

 

persons subject to special tax accounting rules as a result of any item of gross income with respect to equity interest in Pineapple being taken into account in an “applicable financial statement” (as defined in the Code);

 

 

persons deemed to sell equity interest in Pineapple under the constructive sale provisions of the Code;

 

 

persons who acquired their equity interest in Pineapple pursuant to the exercise of options or otherwise as compensation or through a tax-qualified retirement plan or through the exercise of a warrant or conversion rights under convertible instruments; and

 

 

certain expatriates or former citizens or long-term residents of the United States.

 

If an entity treated as a partnership for U.S. federal income tax purposes holds an equity interest in Pineapple, the tax treatment of a partner in the partnership should depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding an equity interest in Pineapple and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.

 

This summary is for information purposes only and is not intended to be, and should not be construed to be, legal, business or tax advice to any particular Pineapple U.S. Holder. This summary does not take into account your particular circumstances and does not address consequences that may be particular to you. Therefore, you should consult your tax advisors with respect to the application of the U.S. federal income tax laws to their particular situations as well as any tax consequences of the merger arising under the U.S. federal estate or gift tax laws or under the laws of any state, local or non-U.S. taxing jurisdiction or under any applicable income tax treaty.

 

For purposes of this discussion, a “Pineapple U.S. Holder” is a beneficial owner of an equity interest in Pineapple that, for U.S. federal income tax purposes, is or is treated as:

 

 

an individual who is a citizen or resident of the United States;

 

 

a corporation or any other entity taxable as a corporation created or organized in or under the laws of the United States or any state or political subdivision thereof;

 

 

a trust the substantial decisions of which are controlled by one or more U.S. persons and which is subject to the primary supervision of a U.S. court, or a trust that validly has elected under applicable Treasury Regulations to be treated as a U.S. person for U.S. federal income tax purposes; or

 

 

an estate, the income of which is subject to U.S. federal income tax regardless of its source.

 

Characterization of the Merger

 

The parties intend for the merger to be treated as a “reorganization” within the meaning of Section 368(a) of the Code. The parties are not obligated to cause the merger to so qualify and it is not a condition to the completion of the merger that the merger so qualifies or that either CSI or Pineapple receives an opinion of counsel to such effect. The merger may be fully taxable to Pineapple U.S. Holders for U.S. federal income tax purposes. Qualification of the merger as part of a “reorganization” will depend on the relevant facts at the time of the merger, including the trading price of CSI common stock. No ruling has been, or will be, sought by CSI or Pineapple from the IRS with respect to the merger and there can be no assurance that the IRS will not challenge the qualification of the merger as part of a “reorganization” under Section 368(a) of the Code or that a court would not sustain such a challenge.

 

U.S. Federal Income Tax Consequences for Pineapple U.S. Holders

 

If the merger qualifies as part of a “reorganization” within the meaning of Section 368(a) of the Code, a Pineapple U.S. Holder generally will recognize gain (but not loss) in an amount equal to the lesser of: (1) the sum of the

 

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amount of cash consideration and the fair market value of the CSI common stock received, minus that Pineapple U.S. Holder’s adjusted tax basis in its equity interest in Pineapple surrendered in exchange therefor, and (2) the amount of cash consideration received. Any recognized gain will generally be long-term capital gain if the Pineapple U.S. Holder’s holding period with respect to the equity interest in Pineapple surrendered is more than one year. In addition, the aggregate tax basis of the CSI common stock received will be equal to the aggregate adjusted tax basis of the equity interest in Pineapple surrendered, reduced by the amount of cash consideration received by the Pineapple U.S. Holder and increased by the amount of gain, if any, recognized by the Pineapple U.S. Holder in the merger. The holding period of the CSI common stock received will include the holding period of the equity interest in Pineapple surrendered.

 

In some cases, gain recognized by a Pineapple U.S. Holder could be treated as having the effect of a distribution of a dividend under the tests set forth in Section 302 of the Code, in which case such Pineapple U.S. Holder could have dividend income up to the amount of the cash consideration received. Because the possibility of dividend treatment depends primarily upon the particular circumstances of a Pineapple U.S. Holder, including the application of certain constructive ownership rules, Pineapple U.S. Holders should consult their tax advisors regarding the potential tax consequences of the merger to them. Pineapple U.S. Holders that are corporations should also consult their tax advisors regarding the potential applicability of the “extraordinary dividend” provisions of the Code.

 

If the merger does not qualify as part of a “reorganization” within the meaning of Section 368(a) of the Code, a Pineapple U.S. Holder generally will recognize gain or loss equal to the difference, if any, between: (1) the sum of the amount of cash consideration and the fair market value of the CSI common stock, and (2) such Pineapple U.S. Holder’s adjusted tax basis in the equity interest in Pineapple surrendered in exchange therefor. Any gain or loss will generally be long-term capital gain or loss if the Pineapple U.S. Holder’s holding period with respect to the equity interest in Pineapple surrendered is more than one year. The deductibility of capital losses is subject to various limitations. The aggregate tax basis of the CSI common stock received will be equal to the fair market value of such stock upon receipt. The holding period of the CSI common stock received at closing of the merger will begin on the day following the closing date of the merger.

 

Gain, if any, recognized in the merger with respect to Earnout Consideration received after the close of the Pineapple U.S. Holder’s taxable year in which the closing of the merger occurs may be eligible for reporting under the installment method. Pineapple U.S. Holders are urged to consult their tax advisors regarding the availability and impact of the installment method and whether to elect out of the installment method.

 

If a Pineapple U.S. Holder acquired different blocks of equity interests in Pineapple at different times or different prices, any gain (or loss, if applicable) must be determined separately for each identifiable block of equity interests. Pineapple U.S. Holders should consult their tax advisors regarding the manner in which cash consideration and CSI common stock (including any CSI common stock received as Earnout Consideration) should be allocated among different blocks of equity interests in Pineapple surrendered and the determination of the tax bases and holding periods of the CSI common stock received (including any CSI common stock received as Earnout Consideration).

 

Imputed Interest

 

A portion of any Earnout Consideration received later than six months after the closing of the merger generally will be treated as imputed interest income taxable at ordinary income rates when received. Any such amount treated as imputed interest will not be taken into account as consideration for purposes of determining gain or loss. Pineapple U.S. Holders should consult with their tax advisors as to the application of the imputed interest rules to their particular circumstances.

 

Information Reporting and Backup Withholding

 

Information reporting and backup withholding may apply to payments made in connection with merger. Backup withholding will not apply, however, if a Pineapple U.S. Holder provides proof of an applicable exemption or furnishes its U.S. taxpayer identification number and otherwise complies with all applicable certification requirements. Any amounts withheld may be allowed as a refund or credit against a Pineapple U.S. Holder’s U.S. federal income tax liability provided the required information is timely furnished to the IRS.

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If the merger qualifies as part of a “reorganization” within the meaning of Section 368(a) of the Code, certain information reporting requirements may apply to each Pineapple U.S. Holder that is a “significant holder” of equity interests in Pineapple. A “significant holder” is a holder of an equity interest in Pineapple that, immediately before the merger, owned at least 1% (by vote or value) of the outstanding equity interests of Pineapple (or securities of Pineapple with a basis of at least $1 million). Pineapple U.S. Holders are urged to consult with their tax advisor as to the potential application of these information reporting requirements.

 

Each Pineapple U.S. Holder is encouraged to consult his, her, or its own tax advisor as to the characterization of the merger and the U.S. federal income tax consequences of the merger, and as to any state, local, foreign or other tax consequences based on such Pineapple U.S. Holder’s particular facts and circumstances.

 

Vote Required

 

The approval of the Pineapple Merger Proposal requires the affirmative vote of holders of at least two-thirds of the issued and outstanding shares of CSI common stock that are entitled to vote at the special meeting. A vote of ABSTAIN on the Pineapple Merger Proposal will have the same effect as a vote AGAINST the approval of the Pineapple Merger Proposal.

 

Other than with respect to any shares allocated to you as a participant in the CSI ESOP, if you are a record holder and do not vote, your shares will not be voted at the special meeting and this failure to vote will have the same effect as a vote against the Pineapple Merger Proposal. If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP on any proposal, your shares will be voted at the special meeting on the Pineapple Merger Proposal according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on the Pineapple Merger Proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on the Pineapple Merger Proposal.

 

OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR SHAREHOLDERS VOTE “FOR” PROPOSAL #1: THE PINEAPPLE MERGER PROPOSAL.

 

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PROPOSAL #2:
MERGER ISSUANCE PROPOSAL

 

Overview

 

CSI is asking its shareholders to approve the issuance of shares of CSI common stock to Pineapple members in connection with the merger. The terms of, reasons for and other aspects of the merger, the issuance of CSI common stock as the Merger Consideration, and other terms are described in detail in the other sections in this proxy statement/prospectus, including “Proposal #1: Pineapple Merger Proposal” beginning on page 61 of this proxy statement/prospectus and “The Merger Agreement” beginning on page 125 of this proxy statement/prospectus.

 

Under the terms of the merger agreement, CSI has agreed to issue to the members of Pineapple an aggregate of 15,600,000 shares of CSI’s common stock, subject to certain adjustments, as “Base Consideration” in the merger. The Base Consideration will be increased for any outstanding convertible notes issued by Pineapple in a Convertible Note Financing, which will convert into additional shares of CSI common stock at a rate of one additional share for every $2.00 in unpaid principal and accrued interest on outstanding convertible notes. The Base Consideration will be decreased for any outstanding indebtedness of Pineapple at the closing of the merger in excess of $22.5 million, which will reduce the Base Consideration at a rate one share for every $2.00 of excess indebtedness.

 

In addition to the Base Consideration, the Class A and Class P members of Pineapple may receive “Earnout Consideration” which is up to an additional 13,000,000 shares of CSI common stock based on achievement of milestones. Additional shares of common stock will be issued to such members of Pineapple as Earnout Consideration upon the occurrence of the following milestones:

 

 

If Pineapple discharges permitted indebtedness of $22.5 million within three months of closing, then such Class A and Class P members will be entitled to an additional 3,000,000 shares of common stock.

 

 

If, within 24 months of closing, the CSI common stock achieves a 30-day VWAP (volume weighted average price) of at least $6.00 per share, such members will be entitled to receive up to 4,000,000 shares of common stock (to be increased to 5,000,000 shares if CSI consummates the dispositions of the legacy assets by the 18-month anniversary of the closing).

 

 

If, within 24 months of closing, the CSI common stock achieves a 30-day VWAP of at least $8.00 per share, such members will be entitled to receive up to an additional 4,000,000 shares of common stock (to be increased to 5,000,000 shares if CSI consummates the legacy dispositions by the 18-month anniversary of the closing).

 

As of the record date, there were 9,720,627 shares of CSI common stock outstanding. CSI shareholders will continue to own their existing shares of CSI common stock, which will not be adjusted by the merger. Immediately following the completion of the merger and the issuance of the Base Consideration, CSI shareholders are expected to hold approximately 38.4% of the outstanding shares of CSI common stock and former Pineapple members are expected to hold approximately 61.6% of the outstanding shares of CSI common stock.

 

Reasons for the Recommendation of the CSI Board of Directors

 

The CSI board of directors is seeking shareholder approval of this Proposal #2: Merger Issuance Proposal in order to comply with Nasdaq Listing Rules 5635(a), (b) and (d), each of which applies to the issuance of CSI common stock in connection with the merger.

 

Under Nasdaq Listing Rule 5635(a), shareholder approval is required prior to the issuance of securities in connection with the acquisition of another company if such securities are not issued in a public offering and (i) have, or will have upon issuance, voting power equal to or in excess of 20% of the voting power outstanding before the issuance of such securities (or securities convertible into or exercisable for common stock); or (ii) the number of shares of common stock to be issued is or will be equal to or in excess of 20% of the number of shares of common stock outstanding before the issuance of the stock or securities.

 

 

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Under Nasdaq Listing Rule 5635(b), shareholder approval is required prior to the issuance of securities when the issuance or potential issuance will result in a change of control of the registrant.

 

Under Nasdaq Listing Rule 5635(d), shareholder approval is required for a transaction other than a public offering involving the sale, issuance or potential issuance by an issuer of common stock (or securities convertible into or exercisable for common stock) if the number of shares of common stock to be issued is or may be equal to 20% or more of the common stock, or 20% or more of the voting power, outstanding before the issuance, at a price that is less than the minimum price, defined as the lower of the closing price immediately preceding the signing of the binding agreement or the average closing price of the common stock for the five trading days immediately preceding the signing of the binding agreement.

 

Shareholder approval of this Proposal #2 is also a condition to the closing of the Pineapple Merger Transaction.

 

The issuance of the shares of CSI common stock as described above in connection with the merger will result in significant dilution to CSI shareholders and result in CSI shareholders having a smaller percentage interest in the voting power, liquidation value and aggregate book value of CSI following the merger. See also “RISK FACTORS” beginning on page 28 of this proxy statement/prospectus.

 

Vote Required

 

The approval of this Proposal #2: Merger Issuance Proposal requires the affirmative vote of the holders of at least a majority of the shares of CSI common stock present at the special meeting and entitled to vote on this proposal.

 

If you vote ABSTAIN on the Merger Issuance Proposal, it will have the same effect as a vote against the Merger Issuance Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have no effect on the outcome of the Merger Issuance Proposal. If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP on any proposal, your shares will be voted at the special meeting on the Merger Issuance Proposal according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on the Merger Issuance Proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on the Merger Issuance Proposal.

 

OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR SHAREHOLDERS VOTE “FOR” PROPOSAL #2: THE MERGER ISSUANCE PROPOSAL.

 

 

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PROPOSAL #3:
PIPE ISSUANCE PROPOSAL

 

Overview

 

CSI is asking its shareholders to approve the issuance of shares of CSI common stock to investors in connection with the PIPE Offering. The terms of, reasons for and other aspects of the PIPE Offering, the issuance of CSI Series A convertible preferred stock and warrants, the shares of CSI common stock issuable upon conversion and exercise of the CSI Series A convertible preferred stock and warrants, and other terms are described in detail in the other sections in this proxy statement/prospectus, including “AGREEMENTS RELATING TO THE MERGER – PIPE Offering Agreements” beginning on page 150 of this proxy statement/prospectus.

 

Assuming CSI sells the maximum 32,000 shares of Series A convertible preferred stock in the PIPE Offering at the $1,000 per share Stated Value, the PIPE Investors would be entitled to acquire:

 

 

up to 9,411,764 shares of CSI common stock upon conversion, at the initial $3.40 per share conversion price, of the Series A convertible preferred stock to be issued in the PIPE Offering; and

 

 

up to 9,411,764 shares of CSI common stock upon exercise of common stock warrants to be issued in the PIPE Offering.

 

The 9,411,764 shares issuable upon conversion of the Series A convertible preferred stock as described above would represent approximately 27.1% of the shares of CSI common stock that will be outstanding after giving effect to the issuance of shares in the merger. The 18,823,528 shares issuable upon conversion of the Series A convertible preferred stock and upon exercise of the warrants for cash as described above would represent approximately 42.6% of the shares of CSI common stock that will be outstanding after giving effect to the issuance of shares in the merger and exercise of the warrants. The number of shares of CSI common stock that are issuable upon conversion of the Series A convertible preferred stock and the number of shares of CSI common stock that are issuable upon exercise of the warrants are subject to increase in the event that CSI issues or is deemed to issue CSI common stock in certain dilutive issuances where the consideration per share is less than a price equal to the conversion price or exercise price in effect immediately prior to such issuance or deemed issuance.

 

Reasons for the Recommendation of the CSI Board of Directors

 

The CSI board of directors is seeking shareholder approval of this Proposal #3: PIPE Issuance Proposal in order to comply with Nasdaq Listing Rules 5635(b) and (d), each of which applies to the issuance of securities by CSI in connection with the PIPE Offering.

 

Under Nasdaq Listing Rule 5635(b), shareholder approval is required prior to the issuance of securities when the issuance or potential issuance will result in a change of control of the registrant.

 

Under Nasdaq Listing Rule 5635(d), shareholder approval is required for a transaction other than a public offering involving the sale, issuance or potential issuance by an issuer of common stock (or securities convertible into or exercisable for common stock) if the number of shares of common stock to be issued is or may be equal to 20% or more of the common stock, or 20% or more of the voting power, outstanding before the issuance, at a price that is less than the minimum price, defined as the lower of the closing price immediately preceding the signing of the binding agreement or the average closing price of the common stock for the five trading days immediately preceding the signing of the binding agreement.

 

Shareholder approval of this Proposal #3 is also a condition to the closing under the securities purchase agreement for the PIPE Offering.

 

The issuance of the shares of CSI common stock as described above in connection with the PIPE Offering will result in significant dilution to CSI shareholders and result in CSI shareholders having a smaller percentage interest in the voting power, liquidation value and aggregate book value of CSI following the PIPE Offering. See also “RISK FACTORS” beginning on page 28 of this proxy statement/prospectus.

 

 

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Vote Required

 

The approval of this Proposal #3: PIPE Issuance Proposal requires the affirmative vote of the holders of at least a majority of the shares of CSI common stock present at the special meeting and entitled to vote on this proposal.

 

If you vote ABSTAIN on the PIPE Issuance Proposal, it will have the same effect as a vote against the PIPE Issuance Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have no effect on the outcome of the PIPE Issuance Proposal. If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP on any proposal, your shares will be voted at the special meeting on the PIPE Issuance Proposal according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on the PIPE Issuance Proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on the PIPE Issuance Proposal.

 

OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR SHAREHOLDERS VOTE “FOR” PROPOSAL #3: THE PIPE ISSUANCE PROPOSAL.

 

 

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PROPOSAL #4:
AUTHORIZED SHARE AMENDMENT PROPOSAL

 

Overview

 

CSI is asking its shareholders to approve an amendment to the CSI articles of incorporation to increase the number of authorized shares of CSI common stock from 30,000,000 to 150,000,000, effective immediately prior to, and subject to, the completion of the merger. A copy of the CSI articles of incorporation as amended to reflect the increase in the authorized shares is attached to this proxy statement/prospectus as Appendix E. Holders of CSI common stock should read the CSI articles of incorporation, as amended, in their entirety.

 

The proposed amendment would amend the first paragraph of Article V of CSI articles of amendment to read in its entirety as follows:

 

“The authorized capital stock of this corporation shall be One Hundred Fifty Million (150,000,000) shares of Common Stock of the par value of five cents ($.05) per share (the “Common Stock”) and Three Million (3,000,000) shares of Preferred Stock of the par value of One Dollar ($1.00) per share (the “Preferred Stock”).”

 

The text of the amendment will be modified as appropriate if the reverse split, described in Proposal #6: Reverse Stock Split Proposal, is effected before the authorized share amendment is filed.

 

Each share of CSI common stock authorized for issuance has the same rights as, and is identical in all respects with, each other share of CSI common stock currently outstanding. The newly authorized shares of CSI common stock will not affect the rights, such as voting and liquidation rights, of the shares of CSI common stock currently outstanding. Under the CSI articles of incorporation, holders of CSI common stock do not have preemptive rights.

 

Reasons for the Recommendation of the CSI Board of Directors

 

CSI’s articles of incorporation currently authorize the issuance of up to 30,000,000 shares of common stock and 3,000,000 shares of preferred stock. As of the close of business on the record date for the special meeting, there were 9,720,627 outstanding shares of CSI common stock. As of the record date, there are no outstanding equity awards under our 2011 Incentive Compensation Plan or otherwise and we do not expect to have any equity awards outstanding at the effective time of the merger.

 

Assuming approval by the CSI shareholders of Proposal #1: Pineapple Merger Proposal, Proposal #2: Merger Issuance Proposal, Proposal #3: Pipe Issuance Proposal, and Proposal #7, Equity Incentive Plan Proposal, there are:

 

 

15,600,000 shares of CSI common stock that will be issued as the Base Consideration at the closing of the merger to the Pineapple members as of the effective time of the merger;

 

 

approximately        additional shares of CSI common stock that are estimated to be issued at the closing of the merger, which reflects an estimated         shares of CSI common stock for outstanding convertible notes issued by Pineapple in the Convertible Note Financing, which will convert into Class C Units of Pineapple at a rate of one Class C Unit for every $2.00 in unpaid principal and accrued interest on outstanding convertible notes and each Class C Units that will be exchanged for 1 shares of CSI common stock in the merger, less an estimated         shares of CSI common stock for outstanding indebtedness of Pineapple at the closing of the merger in excess of $22.5 million, which will reduce the base consideration at a rate one share for every $2.00 of excess indebtedness;

 

 

up to 13,000,000 shares of CSI common stock that may be issued as Earnout Consideration to certain Pineapple members following closing of the merger upon the occurrence of the milestones specified in the merger agreement;

 

 

up to 9,411,764 shares of CSI common stock that may be issued upon conversion, at the initial $3.40 per share conversion price, of the Series A convertible preferred stock to be issued in the PIPE Offering;

 

 

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up to 9,411,764 shares of CSI common stock that may be issued upon exercise of common stock warrants to be issued in the PIPE Offering; and

 

 

        shares of CSI common stock reserved for future issuance under the 2021 Equity Incentive Plan.

 

Pursuant to the merger agreement, CSI has agreed to recommend to the CSI shareholders an amendment to the CSI articles of incorporation to increase the quantity of shares of CSI common stock that CSI is authorized to issue to a number of shares of CSI common stock at least necessary to complete the Pineapple Merger Transaction. The sum of the 9,720,627 outstanding shares of CSI common stock and the 28,600,000 additional shares of CSI common stock that may be issued in the merger as Base Consideration and Earnout Consideration would exceed the currently authorized 30,000,000 shares of CSI common stock, necessitating an increase in the number of authorized shares in order to complete the Pineapple Merger Transaction.

 

Under the securities purchase agreement relating to the PIPE Offering, CSI is obligated to maintain a required minimum reserve of at least the number of shares issuable upon conversion or exercise of the Series A convertible preferred stock and common stock warrants from the authorized shares if CSI common stock. So long as a warrant remains outstanding, CSI is obligated to keep at all times keep reserved for issuance a number of shares of CSI common stock at least equal to 200% of the maximum number of shares of CSI common stock as are issuable upon exercise of the outstanding warrants without regard to any limitations on exercise. Additionally, if the number of authorized but unissued (and otherwise unreserved) shares of CSI common stock is less than 200% of the required minimum (less the number of shares of CSI common stock previously issued upon conversion or exercise of the Series A convertible preferred stock and common stock warrants), then the CSI board of directors is obligated to use its commercially reasonable efforts to amend the CSI articles of incorporation to increase the number of authorized but unissued shares of the CSI common stock to at least 200% of such required minimum, as soon as possible and in any event not later than the 75th day after such date.

 

In addition to these contractual obligations that necessitate an increase in the number of authorized shares in order to complete the Pineapple Merger Transaction and the PIPE Offering, the CSI board of directors believes that it is important for the combined company to have additional authorized shares of CSI common stock for the 2021 Equity Incentive Plan to provide sufficient reserved shares for a level of grants that will attract, retain, and motivate employees and other services providers to the combined company.

 

Additionally, the CSI board of directors believes it is important for the combined company to have available for issuance a number of authorized shares of common stock sufficient to support the combined company’s growth and to provide flexibility for future corporate needs that may be identified by the board of directors of the combined company in the future, including, if needed, for financing its business, for acquiring other businesses, for forming strategic partnerships and alliances and for stock dividends and stock splits. The combined company currently has no such plans, proposals, or arrangements, written or otherwise, to issue any of the additional authorized shares for such purposes except in connection with the merger, the PIPE Offering and the 2021 Equity Incentive Plan as described above.

 

After careful consideration, the CSI board of directors unanimously approved the amendment to the CSI articles of incorporation to increase the number of authorized shares of CSI common stock from 30,000,000 to 150,000,000.

 

Potential Adverse Effects of the Amendment

 

Should the CSI board of directors elect to issue additional shares of CSI common stock, other than on a pro rata basis to all current CSI shareholders, existing CSI shareholders would not have any preferential rights to purchase those shares, and such issuance could have a dilutive effect on earnings per share, book value per share, and the voting power and shareholdings of current CSI shareholders, depending on the particular circumstances in which the additional shares of CSI common stock are issued. Please see the section entitled “DESCRIPTION OF CSI CAPITAL STOCK” beginning on page 205 for a description of CSI capital stock and the rights of CSI shareholders.

 

Potential Anti-Takeover Effects

 

Notwithstanding the foregoing, authorized but unissued shares of CSI common stock may enable the board of directors of the combined company to render it more difficult or to discourage an attempt to obtain control of the

 

 

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combined company and thereby protect continuity of or entrench its management, which may negatively impact the market price of the CSI common stock. If, in the due exercise of its fiduciary obligations, for example, the board of directors of the combined company were to determine that a takeover proposal was not in the best interests of the combined company, such shares could be issued by the board of directors without shareholder approval in one or more private placements or other transactions that might prevent or render more difficult or make more costly the completion of any attempted takeover transaction by diluting voting or other rights of the proposed acquirer or insurgent shareholder group, by creating a substantial voting bloc in institutional or other hands that might support the position of the incumbent board of directors, by effecting an acquisition that might complicate or preclude the takeover, or otherwise.

 

Appraisal or Dissenters’ Rights

 

Pursuant to the MBCA, CSI shareholders are not entitled to appraisal rights or dissenter’s rights with respect to any proposal to be presented at the special meeting, including the amendment to the CSI articles of incorporation to increase the number of authorized shares of CSI common stock.

 

Effectiveness of Amendment

 

If this Proposal #4: Authorized Share Amendment Proposal is approved by the CSI shareholders, the amendment to the CSI articles of incorporation will become effective upon the filing of articles of amendment with the Minnesota Secretary of State or such later effective date and time as specified in the articles of amendment in accordance with Minnesota law. CSI will specify that the amendment to the CSI articles of incorporation is effective immediately prior to, and subject to, the completion of the merger.

 

Vote Required

 

The approval of this Proposal #4: Authorized Share Amendment Proposal requires the affirmative vote of holders of at least a majority of the issued and outstanding shares of CSI common stock that are entitled to vote at the special meeting. A vote of ABSTAIN on the Authorized Share Amendment Proposal will have the same effect as a vote AGAINST the approval of the Authorized Share Amendment Proposal.

 

Other than with respect to any shares allocated to you as a participant in the CSI ESOP, if you are a record holder and do not vote, your shares will not be voted at the special meeting and this failure to vote will have the same effect as a vote against the Authorized Share Amendment Proposal. If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP on any proposal, your shares will be voted at the special meeting on the Authorized Share Amendment Proposal according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on the Authorized Share Amendment Proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on the Authorized Share Amendment Proposal.

 

OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR SHAREHOLDERS VOTE “FOR” PROPOSAL #4: THE AUTHORIZED SHARE AMENDMENT PROPOSAL.

 

 

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PROPOSAL #5:
ARTICLE IX AMENDMENT PROPOSAL

 

Overview

 

CSI is asking its shareholders to approve an amendment to the CSI articles of incorporation to eliminate Article IX relating to Business Combinations and related matters, effective immediately prior to, and subject to, the completion of the merger. A copy of the CSI articles of incorporation as amended to reflect the deletion of Article IX is attached to this proxy statement/prospectus as Appendix E. Holders of CSI common stock should read the CSI articles of incorporation, as amended, in their entirety.

 

The proposed amendment would amend Article IX of CSI articles of amendment to read in its entirety as follows:

 

“ARTICLE IX

 

RESERVED”

 

Generally, Article IX provides that any Business Combination will require the affirmative vote of not less than 80% of the votes entitled to be cast by the holders of all then outstanding shares of CSI voting stock, voting together as a single class. This vote is required notwithstanding the fact that no vote may be required, or that a lesser percentage or separate class vote may be specified, by law or by any other provision of the CSI articles of incorporation or in any agreement with any national securities exchange or otherwise. This vote also is in addition to any affirmative vote required by law or the CSI articles of incorporation.

 

Under Article IX, CSI shareholder approval of a Business Combination will not be applicable to any particular Business Combination if the Business Combination is approved by a majority of the continuing directors of CSI. CSI shareholder approval also will not be applicable to any particular Business Combination if the aggregate consideration to be received per share by holders of CSI common stock or other capital stock in the Business Combination is at least equal to the higher amount of either:

 

 

(if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers’ fees) paid by or on behalf of the Interested Shareholder for any share of CSI common stock in connection with the acquisition by the Interested Shareholder of beneficial ownership of CSI common stock (i) within the two-year period immediately prior to the date of the first public announcement of the proposed Business Combination (the “Announcement Date”) or (ii) in the transaction in which it became an Interested Shareholder, whichever is higher; and

 

 

the Fair Market Value per share of CSI common stock on the Announcement Date or on the date on which the Interested Shareholder became an Interested Shareholder, whichever is higher.

 

As defined in Article IX, a “Business Combination” includes certain transactions or agreements between or with CSI (or its subsidiaries) and an “Interested Shareholder,” including a specified merger, consolidation or statutory exchange of shares; sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets of CSI or a subsidiary; the issuance or transfer of securities of CSI or a subsidiary; the adoption of any plan or proposal for the liquidation or dissolution of CSI or a subsidiary; any transaction that has the effect, directly or indirectly, of increasing the proportionate share of an Interested Shareholder or any affiliate or associate of any Interested Shareholder in the securities of a CSI subsidiary; or any agreement, contract or other arrangement or understanding providing for any one or more of the foregoing actions.

 

The term “Interested Shareholder” includes any person who is the beneficial owner of 10% or more of the then outstanding CSI voting stock or is an affiliate or associate of CSI and at any time within the two-year period immediately prior to the date in question was the beneficial owner of 10% or more of the then outstanding CSI voting stock or is an affiliate or associate of CSI.

 

Additionally, Article IX requires the affirmative vote of not less than two thirds of the votes entitled to be cast by the holders of all then outstanding shares of CSI voting stock, voting together as a single class, for any of the following:

 

 

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any sale, lease, mortgage, pledge, transfer, exchange or other disposition of all or substantially all of the property and assets of CSI to any person;

 

 

any reclassification of securities (including any combination of shares or reverse stock split), or recapitalization or reorganization of CSI, or any merger, consolidation or statutory exchange of shares of CSI or any CSI subsidiary with any other corporation (other than a merger of a wholly owned CSI subsidiary of CSI into CSI or the merger of two or more wholly owned subsidiaries of CSI;

 

 

the adoption of plan or proposal for the liquidation or dissolution of CSI; and

 

 

any agreement, contract or other arrangement or understanding providing for one or more of the foregoing.

 

Reasons for the Recommendation of the CSI Board of Directors

 

After careful consideration, the CSI board of directors unanimously approved the amendment to the CSI articles of incorporation to eliminate Article IX in order to reduce the anti-takeover effects of Article IX.

 

The CSI board of directors believes the anti-takeover protections of Article IX are largely duplicative of existing provisions of the Minnesota Business Corporation Act (MBCA), which governs CSI as a Minnesota corporation and will govern the combined company following the merger. Please see the section entitled “DESCRIPTION OF CSI CAPITAL STOCK – Provisions of Minnesota Law” beginning on page 209 for a summary of provisions of the MBCA that may have an effect of delaying, deterring or preventing an unsolicited takeover of the Company or make an unsolicited takeover of CSI more difficult. Additionally, the scope, required approvals and exceptions of Article IX are, in certain respects, different than existing provisions of the MBCA, which may result in conflicting application of Article IX and the MBCA to particular business combinations or interested shareholders. The CSI board of directors also believes that the provisions of Article IX are not typical of public companies governed by the MBCA and that the combined company may be disadvantaged in future equity financings by these provisions as compared to other Minnesota corporations without provisions comparable to Article IX.

 

For example, the MBCA Section 302A.673 Business combinations prohibits a public Minnesota corporation, such as CSI, from engaging in a business combination with an interested shareholder for a period of four years after the date of the transaction in which the person became an interested shareholder. Broadly Article IX and MBCA Section 302A.673 both regulate business combinations with an interested shareholder. However, Article IX does not have any time limit on the application of its provisions similar to the four-year period of MBCA Section 302A.673.

 

Article IX permits CSI to engage in a business combination with an interested shareholder if the business combination is approved by the affirmative vote of not less than 80% of the votes entitled to be cast by the holders of all then outstanding shares of CSI voting stock, voting together as a single class. Under MBCA Section 302A.673, the shareholders do not have the authority to approve an otherwise prohibited business combination with an interested shareholder.

 

While CSI shareholder approval of a business combination under Article IX will not be applicable if the business combination is approved by a majority of the continuing directors of CSI, MBCA Section 302A.673 requires approval from a committee of the CSI board of directors that excludes current or former officers or employees. Accordingly, the approval of certain directors may be required under Article IX but not permitted under MBCA Section 302A.673. Further, the CSI board may except a particular business combination from the application of Article IX by approving the business combination. To except a business combination from the application of MBCA Section 302A.673, the specified committee of the CSI board of directors must approve the business combination or the acquisition of shares that would result in a shareholder becoming an interested shareholder prior to the date the shareholder becomes an interested shareholder.

 

In order to reduce the duplicative anti-takeover protections applicable to the combined company and to simplify and provide greater uniformity in the application of the anti-takeover protections to the combined company, particularly as compared to other Minnesota publicly-held corporations, the CSI board of directors believes that the amendment to the CSI articles of incorporation to eliminate Article IX is in the best interests of the combined company and its shareholders.

 

 

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Potential Adverse Effects of the Amendment

 

Article IX purports to protect CSI shareholders against certain kinds of business combinations with large shareholders that may have interests in the business combination that are different from, or in addition to, the interests of the CSI shareholders generally. Article IX allows the CSI shareholders to approve a business combination with an interested shareholder even if the CSI board of directors does not approve the business combination. Accordingly, Article IX shifts to the CSI shareholders collectively some decision-making authority in respect of business combinations with interested shareholders. Eliminating Article IX will limit this authority of the CSI shareholders and instead, the CSI board of directors will be have the full authority to manage the business and affairs of the corporation under the MBCA.

 

Even in the absence of Article IX, the Company will be afforded antitakeover protections under the provisions of its organizational documents and under other provisions of the MBCA. Please see the section entitled “DESCRIPTION OF CSI CAPITAL STOCK – Provisions of Minnesota Law” beginning on page 209 for a summary of provisions of the MBCA that may have an effect of delaying, deterring or preventing an unsolicited takeover of the Company or make an unsolicited takeover of CSI more difficult.

 

Appraisal or Dissenters’ Rights

 

Pursuant to the MBCA, CSI shareholders are not entitled to appraisal rights or dissenter’s rights with respect to any proposal to be presented at the special meeting, including the amendment to the CSI articles of incorporation to eliminate Article IX.

 

Effectiveness of Amendment

 

If this Proposal #5: Article IX Amendment Proposal is approved by the CSI shareholders, the amendment to the CSI articles of incorporation will become effective upon the filing of articles of amendment with the Minnesota Secretary of State or such later effective date and time as specified in the articles of amendment in accordance with Minnesota law. CSI will specify that the amendment to the CSI articles of incorporation is effective immediately prior to, and subject to, the completion of the merger.

 

Vote Required

 

The approval of this Proposal #5: Article IX Amendment Proposal requires the affirmative vote of holders of at least 80% of the issued and outstanding shares of CSI common stock that are entitled to vote at the special meeting. A vote of ABSTAIN on the Article IX Amendment Proposal will have the same effect as a vote AGAINST the approval of the Article IX Amendment Proposal.

 

Other than with respect to any shares allocated to you as a participant in the CSI ESOP, if you are a record holder and do not vote, your shares will not be voted at the special meeting and this failure to vote will have the same effect as a vote against the Article IX Amendment Proposal. If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP on any proposal, your shares will be voted at the special meeting on the Article IX Amendment Proposal according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on the Article IX Amendment Proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on the Article IX Amendment Proposal.

 

OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR SHAREHOLDERS VOTE “FOR” PROPOSAL #5: THE ARTICLE IX AMENDMENT PROPOSAL.

 

 

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PROPOSAL #6:
REVERSE STOCK SPLIT PROPOSAL

 

Overview

 

CSI is asking its shareholders to approve a reverse stock split of the outstanding shares of its common stock, at a ratio within a range of 1-for-3 to 1-for-5, as determined by the CSI board of directors.

 

If this Proposal #6: Reverse Stock Split Proposal is approved, the CSI board of directors will select the effective time of the reverse stock split, which will be no later than the first anniversary of this special meeting (the “split effective time”). At the split effective time, the issued shares of CSI common stock immediately prior to the split effective time will be reclassified into a smaller number of shares, at a ratio within the range of 1-for-3 to 1-for-5, with such specific ratio to be approved by the CSI board of directors. As a result of the reverse split, a CSI shareholder will own one new share of CSI common stock for every three (3) shares to five (5) shares of issued common stock held by that shareholder immediately prior to the split effective time.

 

The CSI board of directors may determine to effect the reverse stock split, if the Reverse Stock Split Proposal is approved by CSI shareholders, even if the merger is not consummated. The CSI board of directors also reserves the right to not effect the reverse stock split, even if the Reverse Stock Split Proposal is approved by CSI shareholders.

 

In determining whether to implement the reverse stock split and which reverse stock split ratio to implement, if any, following receipt of shareholder approval of this Proposal #6, the CSI board of directors may consider, among other things, various factors, such as:

 

 

the historic trading price and trading volume of the CSI common stock;

 

 

the then-prevailing trading price and trading volume of CSI common stock and the expected impact of the reverse stock split on the trading market for CSI common stock in the short- and long-term;

 

 

the ability of CSI to maintain its current listing on the Nasdaq Global Market, the ability of CSI to be approved for listing on the Nasdaq Capital Market in connection with the merger, and the ability of the combined company to maintain its listing on the Nasdaq Capital Market;

 

 

which reverse stock split ratio would result in the least administrative cost to CSI; and

 

 

prevailing general market and economic conditions.

 

Article IX of the CSI articles of incorporation requires shareholder approval of a reverse stock split. The Reverse Stock Split Proposal is being made in the event that the CSI shareholders do not approve Proposal #5: Article IX Amendment Proposal to eliminate Article IX. If the CSI shareholders approve Proposal #5: Article IX Amendment Proposal to eliminate Article IX then the CSI board will have the authority under the MBCA to effect a reverse stock split without shareholder approval, subject to the restrictions of the MBCA, even if this Reverse Stock Split Proposal is not approved. The MBCA allows a reverse stock split to be effected by board action alone, without approval of a corporation’s shareholders of any related amendment to the corporation’s articles of incorporation, if the amendment will not result in the percentage of authorized shares of any class or series remaining unissued after the reverse stock split exceeding the percentage of authorized shares of that class or series that were unissued before the reverse stock split, and makes any other change necessary or appropriate to ensure that the rights or preferences of the holders of outstanding shares of any class or series will not be adversely affected by the reverse stock split.

 

Reasons for the Recommendation of the CSI Board of Directors

 

The CSI board of directors recommends that the CSI shareholders vote FOR this Proposal #6: Reverse Stock Split Proposal for the following reasons, each of which is explained in more detail below:

 

 

The reverse stock split may be necessary to increase CSI’s stock price to meet Nasdaq’s minimum bid price requirement at or following the effective time of the merger;

 

 

the CSI board of directors believes effecting the reverse stock split may be an effective means of avoiding a delisting of the CSI common stock from Nasdaq in the future;

 

 

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the CSI board of directors believes a higher stock price may help generate investor interest in CSI prior to the effective time of the merger or in the combined company following the effective time of the merger; and

 

 

if the reverse stock split successfully increases the per share price of CSI common stock, the CSI board of directors believes this increase may increase trading volume in CSI common stock and facilitate future financings by the combined company.

 

CSI common stock is quoted on the Nasdaq Global Market under the symbol “JCS.” According to Nasdaq Listing Rule 5110, a Nasdaq-listed company must apply for initial listing on the Nasdaq Stock Market following a transaction whereby the Nasdaq-listed company combines with a non-Nasdaq entity, resulting in a change of control of the Nasdaq-listed company and potentially allowing the non-Nasdaq entity to obtain a Nasdaq listing. CSI has filed an initial listing application with Nasdaq to seek approval of an initial listing for the combined company on the Nasdaq Capital Market at the effective time of the merger under the name Pineapple Holdings, Inc. and the symbol “PEGY”. The initial listing standards of Nasdaq will require the combined company to have, among other things, a $4.00 per share minimum bid price upon the effective time of the merger. As of             , 2021, the closing price of CSI common stock was $          . If CSI shareholders do not approve the Reverse Stock Split Proposal and CSI cannot satisfy the Nasdaq minimum bid price requirement, the PIPE Offering will not be able to occur because continued listing on Nasdaq is a condition to the closing of the PIPE Offering. The PIPE Offering is necessary to fund the cash portion of the Pre-Closing Acquisition. Accordingly, if the PIPE Offering does not occur, the Pre-Closing Acquisition will not occur and Pineapple Merger Transaction will not be able to occur because the closing of the Pre-Closing Acquisition is a condition to closing of the Pineapple Merger Transaction.

 

The continued listing standards of Nasdaq require CSI to have and will require the combined company following the consummation of the merger to have, among other things, a $1.00 per share minimum bid price. If CSI shareholders do not approve the Reverse Stock Split Proposal and CSI cannot satisfy the Nasdaq minimum bid price requirement for continued listing, CSI may be subject to delisting from the Nasdaq Global Market prior to the consummation of the merger or from the Nasdaq Capital Market following the consummation of the merger.

 

Another principal reason for the reverse stock split would be to generate investor interest in CSI common stock. An investment in CSI common stock may not appeal to brokerage firms that are reluctant to recommend lower priced securities to their clients. Investors may also be dissuaded from purchasing lower priced stocks because the brokerage commissions, as a percentage of the total transaction, tend to be higher for such stocks. Moreover, the analysts at many brokerage firms do not monitor the trading activity or otherwise provide coverage of lower priced stocks. Also, the CSI board of directors believes that most investment funds are reluctant to invest in lower priced stocks. Accordingly, the CSI board of directors believes that a higher stock price may generate investor interest in the CSI common stock.

 

Principal Effects of the Reverse Stock Split

 

If approved and implemented, the principal effects of the reverse stock split would include the following, all of which have been considered by the CSI board of directors in approving the Reverse Stock Split Proposal:

 

 

The number of outstanding shares of CSI common stock will be reduced and each shareholder will own fewer shares than they owned immediately before the reverse stock split.

 

 

The number of shares of CSI common stock reserved and available for issuance under the 2021 Equity Incentive Plan will be reduced proportionately based on the reverse stock split ratio selected by the CSI board of directors, and the exercise price of all outstanding options under the 2021 Equity Incentive Plan will be increased proportionately.

 

 

The number of shares of CSI common stock issuable upon conversion of the CSI Series A convertible preferred stock and issuable upon exercise of the warrants issued as part of the PIPE Offering will be reduced proportionately based on the reverse stock split ratio selected by the CSI board of directors, and the conversion price of the Series A convertible preferred stock and the exercise price of the warrants will be increased proportionately.

 

 

Except for adjustments that may result from the treatment of fractional shares resulting from the reverse stock split, which are explained below under the section entitled “—Fractional Shares,”

 

 

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 each shareholder will hold the same percentage of CSI common stock immediately following the reverse stock split as the shareholder held immediately prior to the reverse stock split.

 

 

The voting rights, rights to dividends and distributions and other rights of CSI common stock will not be changed as a result of the reverse stock split.

 

The reverse stock split will not affect CSI continuing to be subject to the periodic reporting requirements of the Exchange Act. The reverse stock split is not intended as, and will not have the effect of, a “going private transaction” covered by Rule 13e-3 under the Exchange Act.

 

The reverse stock split will be effected simultaneously for all outstanding shares of CSI common stock. The reverse stock split will affect all CSI shareholders uniformly and will not affect any shareholder’s percentage interest in the CSI or the combined company, except to the extent that the reverse stock split results in any shareholder owning a fractional share. Shares of CSI common stock issued pursuant to the reverse stock split will remain fully paid and nonassessable. The reverse stock split will not affect the total proportionate ownership of the combined company following the merger.

 

CSI’s authorized capital stock currently consists of 30,000,000 shares of common stock, which would result in 10,000,000 shares of common stock authorized if the reverse stock split is effectuated at a ratio of 1-for-3, and 6,000,000 shares of common stock authorized if the reverse stock split is effectuated at a ratio of 1-for-5. As of the close of business on                   , 2021, the record date for the special meeting, there were 9,720,627 outstanding shares of CSI common stock., which would result in approximately 3,240,209 shares of common stock outstanding if the reverse stock split is effectuated at a ratio of 1-for-3, and approximately 1,944,125 shares of common stock outstanding if the reverse stock split is effectuated at a ratio of 1-for-5.

 

The following table illustrates the additional effects of a 1-for-3 to 1-for-5 reverse stock split (without giving effect to the treatment of fractional shares), assuming in each case that CSI shareholders approve the Authorized Share Amendment Proposal to permit the amendment to the CSI articles of incorporation to increase the authorized shares of common stock to 150 million:

 

 

 

Shares of Common Stock Issued and Outstanding (1)

 

 

Shares of Common Stock Authorized and Reserved for Issuance(1)(2)

 

 

Shares of Common Stock Authorized and Unreserved for Issuance(1)

 

 

Total Authorized Common Stock(1)

 

 

Total Authorized Preferred Stock

As of              , 2021

 

9,720,627

 

 

78,964,869

 

 

71,032,317

 

 

150,000,000

 

 

3,000,000

1-for-3 Reverse Split

 

3,240,209

 

 

26,322,561

 

 

23,677,439

 

 

50,000,000

 

 

3,000,000

1-for-4 Reverse Split

 

2,430,157

 

 

19,741,921

 

 

17,758,079

 

 

37,500,000

 

 

3,000,000

1-for-5 Reverse Split

 

1,944,125

 

 

15,793,537

 

 

14,206,463

 

 

30,000,000

 

 

3,000,000

 

(1)          These estimates do not reflect the potential effects of cash payments in lieu of issuance of fractional shares that may result from the reverse stock split.

 

(2)          Includes (a) 15,600,000 shares of CSI common stock to be issued as Base Consideration in the merger, (b) up to 13,000,000 shares of CSI common stock that may be issued to the Class A and Class P members of Pineapple as Earnout Consideration based on achievement of milestones, (c) 200% of the 9,411,764 shares of CSI common stock issuable upon conversion, at the initial $3.40 per share conversion price, of the Series A convertible preferred stock to be issued in the PIPE Offering, (d) 200% of the 9,411,764 shares of CSI common stock issuable upon exercise, at the initial $3.40 per share exercise price, of warrants to be issued in the PIPE Offering, and (e) 3,000,000 shares reserved for future issuance under the 2021 Equity Incentive Plan. Under the terms of the securities purchase agreement and warrants for the PIPE Offering, CSI is obligated to keep reserved a number of authorized but unissued (and otherwise

 

 

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unreserved) shares of CSI common stock of at least 200% of the number required to issue all shares of CSI common stock upon conversion or exercise of the Series A convertible preferred stock and warrants to be issued in the PIPE Offering. Does not include any adjustment to the shares of CSI common stock issuable as Base Consideration in the merger for any outstanding convertible notes issued by Pineapple in a Convertible Note Financing or for any outstanding indebtedness of Pineapple at the closing of the merger in excess of $22.5 million.

 

There are risks associated with the reverse stock split, all of which have been considered by the CSI board of directors in recommending to the CSI shareholders the Reverse Stock Split Proposal for approval.

 

We cannot predict whether the reverse stock split will increase the market price for CSI common stock. The history of similar stock split combinations for companies in like circumstances is varied. There is no assurance that:

 

 

the market price per share of CSI common stock after the reverse stock split will rise in proportion to the reduction in the number of shares of CSI common stock outstanding before the reverse stock split;

 

 

the reverse stock split will result in a per share price that will attract brokers and investors who do not trade in lower priced stocks;

 

 

the reverse stock split will result in a per share price that will increase the ability of CSI to attract and retain employees;

 

 

the bid price per share will either exceed or remain in excess of the $1.00 minimum bid price as required by Nasdaq for continued listing; or

 

 

that the combined company will otherwise meet the requirements of Nasdaq for initial listing on the Nasdaq Capital Market, including the $4.00 minimum bid price upon the closing.

 

The market price of CSI common stock will also be based on the performance of CSI, the perceived value of the CVRs and any pre-closing dividends we may declare, the performance and expected performance of the combined company, and other factors, some of which are unrelated to the number of shares outstanding. If the reverse stock split is effected and the market price of CSI common stock declines, the percentage decline as an absolute number and as a percentage of the overall market capitalization of CSI may be greater than would occur in the absence of a reverse stock split. Furthermore, the liquidity of CSI common stock could be adversely affected by the reduced number of shares that would be outstanding after the reverse stock split. In addition, there can be no assurance that CSI common stock will not be delisted due to a failure to meet other listing requirements even if the market price per share of CSI common stock post reverse stock split remains in excess of the minimum bid price requirement.

 

The anticipated resulting increase in the per share price of CSI common stock due to the reverse stock split is expected to encourage greater interest in its common stock by brokers and investors and possibly promote greater liquidity for its shareholders. However, there is no assurance that such greater interest or liquidity will occur.

 

Since the reverse stock split will decrease the number of shares held by shareholders, the reverse stock split may increase the number of shareholders who hold less than a “round lot,” or 100 shares. Typically, the transaction costs to shareholders selling “odd lots” are higher on a per share basis. Consequently, the reverse stock split could increase the transaction costs to shareholders in the event they wish to sell all or a portion of their shares.

 

Procedure for Effecting the Reverse Stock Split and Exchange of Stock Certificates

 

If CSI shareholders approve the Reverse Stock Split Proposal, and if the CSI board of directors still believes that a reverse stock split is in the best interests of the company and its shareholders, the CSI board of directors will approve a specific reverse stock split ratio and determine the split effective time. Then CSI will file the amendment to its articles of incorporation with the Secretary of State of the State of Minnesota at such time as the CSI board of directors has determined to be the appropriate split effective time. The CSI board of directors may delay effecting the reverse stock split without resoliciting CSI shareholder approval until the first anniversary of this special meeting. Beginning at the split effective time, each certificate representing pre-split shares will be deemed for all corporate purposes to evidence ownership of post-split shares.

 

 

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As soon as practicable after the split effective time, CSI shareholders will be notified that the reverse stock split has been effected. CSI expects that the CSI transfer agent will act as exchange agent for purposes of implementing the exchange of stock certificates, if any. Holders of CSI common stock holding all of their shares electronically in book-entry form with CSI’s transfer agent do not need to take any action (the exchange will be automatic) to receive post-split shares. Holders of pre-split shares held in certificated form will be asked to surrender to the exchange agent certificates representing pre-split shares in accordance with the procedures to be set forth in a letter of transmittal to be sent by CSI. Upon receipt of the holder’s pre-split certificate(s) and the properly completed and executed letter of transmittal, the holder will be issued the appropriate number of shares of common stock electronically in book-entry form under the Direct Registration System, or DRS. No new shares in book-entry form will be reflected until the holder surrenders the holder’s outstanding pre-reverse stock split certificate(s), together with the properly completed and executed letter of transmittal, to the exchange agent. The certificates, if any, reflecting the post-split shares will also reflect the change in CSI’s corporate name to Pineapple Holdings, Inc. if the merger has been consummated. Any pre-split shares submitted for transfer, whether pursuant to a sale or other disposition, or otherwise, will automatically be exchanged for post-split shares. CSI shareholders should not destroy any stock certificate(s) and should not submit any certificate(s) unless and until requested to do so.

 

Fractional Shares

 

No fractional shares will be issued in connection with the reverse stock split. CSI shareholders of record who otherwise would be entitled to receive fractional shares because they hold a number of pre-split shares not evenly divisible by the number of pre-split shares to be reclassified into one post-split share, will be entitled to a cash payment in lieu thereof at a price equal to the fraction to which the shareholder would otherwise be entitled multiplied by the closing price of the common stock on Nasdaq on the date of the split effective time; provided, however, holders of certificated shares must first surrender to the exchange agent the certificates representing such pre-split shares. The ownership of a fractional interest will not give the holder thereof any voting, dividend, or other rights except to receive payment therefor as described herein.

 

CSI shareholders should be aware that, under the escheat laws of the various jurisdictions where CSI shareholders reside, where CSI is domiciled, and where the funds will be deposited, sums due for fractional interests that are not timely claimed after the effective date of the reverse stock split may be required to be paid to the designated agent for each such jurisdiction, unless correspondence has been received by CSI or the exchange agent concerning ownership of such funds within the time permitted in such jurisdiction. Thereafter, CSI shareholders otherwise entitled to receive such funds will have to seek to obtain them directly from the state to which they were paid.

 

Accounting Consequences

 

The par value per share of CSI common stock will remain unchanged at $0.05 per share after the reverse stock split. As a result, at the split effective time of the reverse stock split, the stated capital on the CSI’s balance sheet attributable to its common stock will be reduced proportionately based on the reverse stock split ratio, from its present amount, and the additional paid-in capital account will be increased for the amount by which the stated capital is reduced. After the reverse stock split (and disregarding the impact of shares of CSI common stock issued in the merger), net income or loss per share, and other per share amounts will be increased because there will be fewer shares of common stock outstanding. In future financial statements, net loss per share and other per share amounts for periods ending before the reverse stock split will be restated to give retroactive effect to the reverse stock split.

 

Potential Anti-Takeover Effects

 

The reverse stock split will not increase the proportion of unissued authorized shares to issued shares and accordingly, the CSI board of directors believes there are limited anti-takeover effects from the reverse stock split. The reverse stock split proposal is not being proposed in response to any effort of which CSI is aware to accumulate shares of CSI common stock or obtain control of CSI, other than in connection with the merger. Other than the proposals being submitted to the CSI shareholders for their consideration at the special meeting, the CSI board of directors does not currently contemplate recommending the adoption of any other actions that could be construed to affect the ability of third parties to take over or effect a change control of CSI. For more information, please see the section entitled “DESCRIPTION OF CSI CAPITAL STOCK— Anti-Takeover Effect of the CSI Articles of Incorporation, the CSI Bylaws and Minnesota Law” in this proxy statement/prospectus.

 

 

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Certain Material U.S. Federal Income Tax Consequences of the Reverse Stock Split

 

The following discussion is a summary of the material U.S. federal income tax consequences of the reverse stock split to CSI U.S. Holders (which, for purposes of this discussion, has the same meaning as in “AGREEMENTS RELATING TO THE MERGER—Contingent Value Rights Agreement—Certain Material U.S. Federal Income Tax Consequences of the Receipt of CVRs”), but does not purport to be a complete analysis of all potential tax consequences that may be relevant to CSI U.S. Holders. The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local or non-U.S. tax laws are not discussed. This discussion is based on the Code, Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the IRS, in each case in effect as of the date hereof. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a CSI U.S. Holder. CSI has not sought and does not intend to seek any rulings from the IRS regarding the matters discussed below. There can be no assurance the IRS or a court will not take a position contrary to that discussed below regarding the tax consequences of the reverse stock split.

 

This discussion does not address all U.S. federal income tax consequences that may be relevant to a CSI U.S. Holder’s particular circumstances, including the impact of the alternative minimum tax or the Medicare contribution tax on net investment income. This discussion is limited to CSI U.S. Holders that hold CSI common stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). In addition, it does not address consequences relevant to CSI U.S. Holders subject to special rules, including, without limitation:

 

 

brokers, dealers or traders in securities; banks; insurance companies; other financial institutions; mutual funds;

 

 

real estate investment trusts; regulated investment companies; tax-exempt organizations or governmental organizations;

 

 

pass-through entities such as partnerships, S corporations, disregarded entities for federal income tax purposes and limited liability companies (and investors therein);

 

 

persons who are not “United States persons” within the meaning of Section 7701(a)(30) of the Code;

 

 

shareholders who are subject to the alternative minimum tax provisions of the Code;

 

 

persons who hold their shares of CSI common stock as part of a hedge, wash sale, synthetic security, conversion transaction, or other integrated transaction;

 

 

persons that have a functional currency other than the U.S. dollar; traders in securities who elect to apply a mark-to-market method of accounting; and

 

 

certain expatriates or former citizens or long-term residents of the United States.

 

If an entity treated as a partnership for U.S. federal income tax purposes holds CSI common stock, the tax treatment of a partner in the partnership should depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding CSI common stock and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.

 

This summary is for information purposes only and is not intended to be, and should not be construed to be, legal, business or tax advice to any particular CSI U.S. Holder. This summary does not take into account your particular circumstances and does not address consequences that may be particular to you. Therefore, you should consult your tax advisors with respect to the application of the U.S. federal income tax laws to their particular situations as well as any tax consequences of the receipt of CVRs and any payments made pursuant thereto arising under the U.S. federal estate or gift tax laws or under the laws of any state, local or non-U.S. taxing jurisdiction or under any applicable income tax treaty.

 

 

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Reverse Stock Split

 

The reverse stock split should constitute a “recapitalization” for U.S. federal income tax purposes. As a result, a CSI U.S. Holder should not recognize gain or loss upon the reverse stock split, except with respect to cash received in lieu of a fractional share of combined company common stock, as discussed below. A CSI U.S. Holder’s aggregate tax basis in the shares of combined company common stock received pursuant to the reverse stock split should equal the aggregate tax basis of the shares of combined company common stock surrendered (excluding any portion of such basis that is allocated to any fractional share of combined company common stock), and such CSI U.S. Holder’s holding period in the shares of combined company common stock received should include the holding period in the shares of combined company common stock surrendered. Treasury Regulations provide detailed rules for allocating the tax basis and holding period of the shares of combined company common stock surrendered to the shares of combined company common stock received pursuant to the reverse stock split. Holders of shares of combined company common stock acquired on different dates and at different prices should consult their tax advisors regarding the allocation of the tax basis and holding period of such shares.

 

A CSI U.S. Holder that receives cash in lieu of a fractional share of combined company common stock pursuant to the reverse stock split should recognize capital gain or loss in an amount equal to the difference of the amount of cash received and the CSI U.S. Holder’s tax basis in the shares of combined company common stock surrendered that is allocated to such fractional share of combined company common stock. Such capital gain or loss should be long-term capital gain or loss if the CSI U.S. Holder’s holding period for CSI common stock surrendered exceeded one year at the split effective time of the reverse stock split.

 

This discussion assumes that the distribution of CVRs to CSI U.S. Holders will be treated for U.S. federal income tax purposes as a transaction that is separate and distinct from the reverse stock split. However, it is possible that the IRS or a court could determine that the reverse stock split and the receipt of CVRs constitute a single “recapitalization” for U.S. federal income tax purposes. For a discussion of such treatment, please see the section entitled “AGREEMENTS RELATING TO THE MERGER — Contingent Value Rights Agreement — Certain Material U.S. Federal Income Tax Consequences of the Receipt of CVRs — Alternative Treatment of the Receipt of CVRs and the Reverse Stock Split as a Single Recapitalization” in this proxy statement/prospectus.

 

Information Reporting and Backup Withholding

 

A CSI U.S. Holder may be subject to information reporting and backup withholding when such holder receives cash in lieu of fractional shares of combined company common stock in the reverse stock split. Certain CSI U.S. Holders are exempt from backup withholding, including corporations and certain tax-exempt organizations. A CSI U.S. Holder will be subject to backup withholding if such holder is not otherwise exempt and:

 

 

the holder fails to furnish the holder’s taxpayer identification number, which for an individual is ordinarily his or her social security number;

 

 

the holder furnishes an incorrect taxpayer identification number;

 

 

the applicable withholding agent is notified by the IRS that the holder previously failed to properly report payments of interest or dividends; or

 

 

the holder fails to certify under penalties of perjury that the holder has furnished a correct taxpayer identification number and that the IRS has not notified the holder that the holder is subject to backup withholding.

 

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a CSI U.S. Holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS. CSI U.S. Holders should consult their tax advisors regarding their qualification for an exemption from backup withholding and the procedures for obtaining such an exemption.

 

Appraisal or Dissenters’ Rights

 

Pursuant to the MBCA, CSI shareholders are not entitled to appraisal rights or dissenter’s rights with respect to any proposal to be presented at the special meeting, including the approval of a Reverse Stock Split Proposal.

 

 

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Vote Required

 

The approval of this Proposal #6: Reverse Stock Split Proposal requires the affirmative vote of holders of two-thirds of the issued and outstanding shares of CSI common stock that are entitled to vote at the special meeting. A vote of ABSTAIN on the Reverse Stock Split Proposal will have the same effect as a vote AGAINST the approval of the Reverse Stock Split Proposal.

 

Other than with respect to any shares allocated to you as a participant in the CSI ESOP, if you are a record holder and do not vote, your shares will not be voted at the special meeting and this failure to vote will have the same effect as a vote against the Reverse Stock Split Proposal. If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP on any proposal, your shares will be voted at the special meeting on the Reverse Stock Split Proposal according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on the Reverse Stock Split Proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on the Reverse Stock Split Proposal.

 

OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR SHAREHOLDERS VOTE “FOR” PROPOSAL #6: REVERSE STOCK SPLIT PROPOSAL.

 

 

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PROPOSAL #7:
2021 EQUITY INCENTIVE PLAN PROPOSAL

 

Overview

 

On                  , 2021, the CSI board of directors approved the Pineapple Holdings, Inc. 2021 Equity Incentive Plan (the “2021 Equity Incentive Plan”), subject to approval by the CSI shareholders. Assuming the 2021 Equity Incentive Plan is approved by the CSI shareholders, it will become effective on the closing date of the merger, subject to the completion of the merger (such date, the “Effective Date”). In the event that our shareholders do not approve this proposal, the 2021 Equity Incentive Plan will not become effective.

 

The 2021 Equity Incentive Plan provides for the issuance of equity awards on or related to the common stock of the combined company. The number of shares of common stock that may be the subject of awards issued under the 2021 Equity Incentive Plan is 3,000,000, which represents approximately 8.0% of the outstanding CSI common stock on a fully-diluted basis assuming the issuance of the Base Consideration and the closing of the PIPE Offering.

 

On the Effective Date, the Communications Systems, Inc. 2011 Executive Incentive Compensation Plan will be terminated. As of               , 2021, we do not have any outstanding compensatory equity awards under the 2011 Executive Incentive Compensation Plan or under any other equity incentive plans.

 

Reasons for the Recommendation of the CSI Board of Directors

 

The CSI board of directors recommends that the CSI shareholders vote FOR this Proposal #7: 2021 Equity Incentive Plan Proposal because the 2021 Equity Incentive Plan will provide us with a share reserve that will enable us to provide a level of grants to attract, retain, and motivate, and allow us to provide a competitive mix of compensation to, our key employees and other participants. In addition, the 2021 Equity Incentive Plan includes a number of features that we believe are consistent with the interests of our shareholders and sound corporate governance practices.

 

 

No Discounted Stock Options or SARs. Stock options and stock appreciation rights may not be granted with an exercise price lower than the fair market value of the underlying shares on the date of grant.

 

 

No Repricings. The 2021 Equity Incentive Plan prohibits any stock option or stock appreciation right from being re-priced, replaced, re-granted through cancellation, or modified without stockholder approval if the effect would be to reduce the exercise or strike price, as applicable, for the shares underlying the option or stock appreciation right.

 

 

No “Evergreen” Provision. There is no “evergreen” feature pursuant to which the shares available for issuance under the 2021 Equity Incentive Plan can be automatically replenished.

 

 

No Liberal Share Recycling. The following shares will not be added back to the 2021 Equity Incentive Plan’s share reserve: any shares that are delivered or withheld to pay the exercise price of an option award or to satisfy a tax withholding obligation in connection with any awards; shares that we repurchase using option exercise proceeds; and shares subject to a SAR award that are not issued in connection with the stock settlement of that award upon its exercise.

 

 

Minimum Vesting or Performance Period for All Awards. A minimum vesting or performance period of one year is prescribed for all awards, subject to limited exceptions.

 

 

No Transferability. Awards granted under the 2021 Equity Incentive Plan generally may not be transferred, except by will or the laws of descent and distribution or pursuant to a qualified domestic relations order, unless approved by the Committee.

 

 

No Automatic Grants. The 2021 Equity Incentive Plan does not provide for “reload” or other automatic grants to participants.

 

 

No Tax Gross-ups. The 2021 Equity Incentive Plan does not provide for any tax gross-ups.

 

 

Limits on Dividends and Dividend Equivalents. The 2021 Equity Incentive Plan prohibits the payment of dividend equivalents on stock options and SARs, and requires that any dividends and

 

 

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dividend equivalents payable or credited on unvested awards other than options and SARs (“full value awards”) must be subject to the same restrictions and risk of forfeiture as the shares or share equivalents to which such dividends or dividend equivalents relate.

 

 

Compensation Recovery (“Clawback”). The 2021 Equity Incentive Plan provides that all awards granted under the 2021 Equity Incentive Plan will be and remain subject to any incentive compensation or clawback or recoupment policy that may be adopted by the Board or required by applicable law.

 

 

No Single Trigger Vesting upon a Change in Control. The 2021 Equity Incentive Plan provides for vesting of time-based equity awards or performance-based equity awards based on both (1) the occurrence of a change in control and (2) an accompanying involuntary termination of service without cause within 24 months after the change in control (unless the awards are not continued, assumed, or replaced in connection with a corporate transaction, in which case they will accelerate upon the change in control).

 

 

No Liberal Definition of “Change in Control.” No change in control would be triggered by shareholder approval of a business combination transaction, the announcement or commencement of a tender offer, or any board assessment that a change in control may be imminent.

 

Description of 2021 Equity Incentive Plan

 

The material features of the 2021 Equity Incentive Plan are summarized below. The summary is qualified in its entirety by reference to the full text of the 2021 Equity Incentive Plan, which is attached to this proxy statement/prospectus as Appendix D.

 

Purpose of the Plan. The purpose of the 2021 Equity Incentive Plan is to assist the combined company in attracting, retaining, motivating and rewarding certain key employees, officers, directors and consultants of the combined company and its affiliates, promoting the creation of long-term value for the shareholders of the combined company by closely aligning the interests of such individuals with those of our shareholders. The 2021 Equity Incentive Plan authorizes the award of stock-based incentives to selected employees, officers, directors and consultants of the combined company to encourage such persons to expend the maximum effort in the creation of stockholder value.

 

Eligible Participants. Employees and officers of, and consultants and advisors to, the combined company or any affiliate, as well as all non-employee directors of the combined company, will be eligible to receive awards under the 2021 Equity Incentive Plan. We estimate that there will be approximately          employees (including          officers), and           non-employee directors who would be eligible to participate in the 2021 Equity Incentive Plan immediately following the Effective Date.

 

Administration. The 2021 Equity Incentive Plan will be administered by our Board or a committee of two or more non-employee directors appointed by our Board to administer the 2021 Equity Incentive Plan (such committee being referred to as the “Committee”). To the extent consistent with applicable law, the Committee may delegate its authority under the 2021 Equity Incentive Plan to any one or more of its members, or, with respect to awards to participants who are not themselves our directors or executive officers, to one or more of our other directors or executive officers or to a committee of the Board comprised of one or more directors. The Committee may also delegate non-discretionary administrative duties to other persons, agents or advisors.

 

The Committee has the authority to determine the persons to whom awards will be granted, the timing, type and number of shares covered by each award, the terms and conditions of the awards and the manner in which the awards are paid or settled. The Committee may also (i) adopt sub-plans or special provisions applicable to awards, (ii) cancel or suspend an award, accelerate the vesting or extend the exercise period of any award (subject to certain limitations), or otherwise amend the terms and conditions of outstanding awards to the extent permitted under the 2021 Equity Incentive Plan, (iii) establish, modify or rescind rules to administer the 2021 Equity Incentive Plan, interpret the 2021 Equity Incentive Plan and any related award agreement, reconcile any inconsistency, correct any defect or supply any omission in the 2021 Equity Incentive Plan, (iv) grant substitute awards under the 2021 Equity Incentive Plan, and (v) require or permit the deferral of the settlement of an award and establish the terms and conditions of any such deferral. Unless an amendment to the terms of an award is necessary to comply with

 

 

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applicable laws or stock exchange rules, a participant whose rights would be materially adversely impaired by such an amendment must consent to it.

 

Subject to certain limits in the 2021 Equity Incentive Plan, the Committee may also establish sub-plans or modify the terms of awards under the 2021 Equity Incentive Plan with respect to participants who reside outside of the United States or are employed by a non-U.S. subsidiary in order to comply with local legal requirements or otherwise meet the objectives of the 2021 Equity Incentive Plan.

 

Except in connection with equity restructurings and other situations in which share adjustments are specifically authorized, the 2021 Equity Incentive Plan prohibits the Committee from repricing any outstanding “underwater” option or SAR awards without the prior approval of our shareholders. For these purposes, a “repricing” includes amending the terms of an option or SAR award to lower the exercise price, canceling an option or SAR award in conjunction with granting a replacement option or SAR award with a lower exercise price, canceling an underwater option or SAR award in exchange for cash, other property or grant of a new full value award, or otherwise making an underwater option or SAR award subject to any action that would be treated under accounting rules as a “repricing.”

 

Available Shares and Limitations on Awards.

 

The number of shares of common stock that may be the subject of awards issued under the 2021 Equity Incentive Plan is 3,000,000.

 

The 2021 Equity Incentive Plan also provides that any shares of common stock subject to an award that expires, is cancelled or forfeited, is settled for cash or otherwise does not result in the issuance of all of the shares of common stock subject to such award shall, to the extent of such cancellation, forfeiture, expiration, cash settlement or non-issuance, again become available for awards under the 2021 Equity Incentive Plan. However, the 2021 Equity Incentive Plan provides that the following shares shall not again become available for awards or replenish the share reserve: (i) shares tendered (either actually or by attestation) by the participant or withheld by us in payment of the exercise price of a stock option, (ii) shares tendered (either actually or by attestation) by the participant or withheld by us to satisfy any tax withholding obligation with respect to an award, (iii) shares repurchased by us with proceeds received from the exercise of a stock option, and (iv) shares subject to a stock appreciation right award that are not issued in connection with the stock settlement of that award upon its exercise.

 

The aggregate value of stock-based awards granted under the 2021 Equity Incentive Plan to any non-employee director in respect of any calendar year with respect to their service as a non-employee director (excluding one-time awards made to a non-employee director in connection with their initial appointment to the board) may not exceed $500,000, determined based on the fair market value of such awards as of the date of grant for restricted stock, stock unit and other stock-based awards, and based on the grant date fair value for accounting purposes for stock options and stock appreciation rights. The aggregate value of stock-based awards granted under the 2021 Equity Incentive Plan to any non-employee director in connection with their initial appointment on the Board may not exceed $500,000, determined based on the fair market value of such awards as of the date of grant for restricted stock, stock unit and other stock-based awards, and based on the grant date fair value for accounting purposes for stock options and stock appreciation rights.

 

Share Adjustment Provisions. If certain transactions with our shareholders occur that cause the per share value of the combined company’s common stock to change, such as stock splits, spin-offs, stock dividends or certain recapitalizations (referred to as “equity restructurings”), the Committee will equitably adjust, to the extent it deems appropriate, (i) the class of shares issuable and the maximum number and kind of shares subject to the 2021 Equity Incentive Plan, (ii) outstanding awards as to the class, number of shares and price per share, and (iii) award limitations prescribed by the 2021 Equity Incentive Plan. Other types of transactions may also affect the common stock, such as reorganizations, mergers or consolidations. If there is such a transaction and the Committee determines that adjustments of the type previously described in connection with equity restructurings would be appropriate to prevent any dilution or enlargement of benefits under the 2021 Equity Incentive Plan, the Committee will make such adjustments as it may deem equitable.

 

Minimum Vesting Periods. Awards that vest based solely on the satisfaction of service-based vesting conditions are subject to a minimum vesting period of one year from the date of grant, and awards whose grant or vesting is subject

 

 

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to performance-based vesting conditions must be subject to a performance period of not less than one year. These minimum vesting and performance periods will not apply: (i) upon certain specified instances of a change in control, (ii) upon termination of service due to death or disability, (iii) to a substitute award that does not reduce the vesting period of the award being replaced, (iv) to awards granted in payment of or in exchange for other compensation that is already earned and payable, and (v) to awards involving an aggregate number of shares not in excess of 5% of the 2021 Equity Incentive Plan’s share reserve. For purposes of awards made to non-employee directors, a vesting period will be deemed to be one year if it runs from the date of one annual meeting of the company’s shareholders to the date of the next annual meeting of the company’s shareholders.

 

Types of Awards. The 2021 Equity Incentive Plan permits us to award stock options, stock appreciation rights or “SARs”, restricted stock awards, stock unit awards and other stock-based awards to eligible recipients. These types of awards are described in more detail below.

 

Options. Employees of our company or any subsidiary may be awarded options to purchase common stock that qualify as “incentive stock options” within the meaning of Section 422 of the Code, and any eligible recipient may be awarded options to purchase common stock that do not qualify as incentive stock options, referred to as “nonqualified stock options.” The exercise price to be paid by a participant at the time an option is exercised may not be less than 100% of the fair market value of one share of our common stock on the date of grant, unless the option is granted as a substitute award as described earlier. “Fair market value” under the 2021 Equity Incentive Plan as of any date means, if the shares of our common stock are readily tradable on an established securities market, then fair market value will be the closing sales price for a share of common stock on the principal securities market on which it trades on the date for which it is being determined, or if no sale of shares occurred on that date, on the next preceding date on which a sale of shares occurred, as reported by such principal securities market. If the shares of our common stock are not then readily tradable on an established securities market, then fair market value will be determined by the Committee as the result of a reasonable application of a reasonable valuation method that satisfies the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).

 

The total purchase price of the shares to be purchased upon exercise of an option will be paid by the participant in cash or in such other manner as the Committee may permit, including by payment under a broker-assisted sale and remittance program, by withholding shares otherwise issuable to the participant upon exercise of the option or by delivery to the company of shares (by actual delivery or attestation) already owned by the participant (in either case, such shares having a fair market value as of the date the option is exercised equal to the purchase price of the shares being purchased).

 

An option will vest and become exercisable at such time, in such installments and subject to such conditions as may be determined by the Committee, and no option may have a term greater than 10 years from its date of grant. No dividends or dividend equivalents may be paid or credited with respect to shares subject to an option award.

 

The aggregate fair market value of shares of our common stock with respect to which incentive stock options granted to any participant may first become exercisable during any calendar year may not exceed $100,000. Any incentive stock options that become exercisable in excess of this amount will be treated as nonqualified stock options. The maximum number of shares that may be issued upon the exercise of incentive stock option awards under the 2021 Equity Incentive Plan is 3,000,000, subject to adjustment for changes in our corporate structure or shares, as described above.

 

Stock Appreciation Rights. A SAR award provides the right to receive a payment from us, in the form of shares of our common stock, cash or a combination of both, equal to the difference between (i) the fair market value of a specified number of shares of our common stock on the date of exercise of the SAR, and (ii) the aggregate exercise price under the SAR of that number of shares of common stock. SARs will be subject to such terms and conditions, consistent with the other provisions of the 2021 Equity Incentive Plan, as may be determined by the Committee. The Committee will have the sole discretion to determine the form in which payment of SARs will be made to a participant.

 

The exercise price per share of common stock of a SAR award will be determined by the Committee, but may not be less than 100% of the fair market value of one share of our common stock on the date of grant, unless the SAR is granted as a substitute award as described earlier. A SAR award will vest and become exercisable at such time, in such installments and subject to such conditions as may be determined by the Committee, and no SAR award may

 

 

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have a term greater than 10 years from its date of grant. No dividends or dividend equivalents may be paid or credited with respect to shares subject to a SAR award.

 

Restricted Stock Awards. A restricted stock award is an award of our common stock that vests at such times and in such installments as may be determined by the Committee. Until an award vests, the shares subject to the award are subject to restrictions and the possibility of forfeiture. The Committee may impose such restrictions or conditions to the vesting of restricted stock awards as it deems appropriate, including that the participant remain continuously employed by, or in the service of, us or a subsidiary of ours for a certain period or that we, or any of our subsidiaries or business units or the participant satisfy specified performance criteria.

 

Any dividends or distributions payable with respect to shares that are subject to the unvested portion of a restricted stock award will be subject to the same restrictions and risk of forfeiture as the shares to which such dividends or distributions relate. Participants are entitled to vote restricted shares prior to the time they vest.

 

Stock Unit Awards. A stock unit award is a right to receive the fair market value of a specified number of shares of our common stock, payable in cash, shares, or a combination of both, that vests at such times and in such installments as may be determined by the Committee. Until it vests, a stock unit award is subject to restrictions and the possibility of forfeiture. Stock unit awards will be subject to such terms and conditions, consistent with the other provisions of the 2021 Equity Incentive Plan, as may be determined by the Committee. The Committee may provide for the payment of dividend equivalents on stock unit awards and other stock-based awards, but any such dividend equivalents will be subject to the same restrictions and risk of forfeiture as the underlying units or other share equivalents to which such dividend equivalents relate.

 

Other Stock-Based Awards. The Committee may grant awards of common stock and other awards that are valued by reference to and/or payable in shares of our common stock under the 2021 Equity Incentive Plan. The Committee has discretion in determining the terms and conditions of such awards.

 

Effective Date and Term of the 2021 Equity Incentive Plan. The Effective Date of the 2021 Equity Incentive Plan will be the closing date of the merger, subject to the completion of the merger and assuming that the CSI shareholders approve this Proposal #7: 2021 Equity Incentive Plan Proposal. No awards will be made under the 2021 Equity Incentive Plan prior to the Effective Date. If the CSI shareholders fail to approve the Pineapple Merger Proposal, the Merger Issuance Proposal, or the 2021 Equity Incentive Plan Proposal, the 2021 Equity Incentive Plan will not become effective.

 

Unless terminated earlier, the 2021 Equity Incentive Plan will terminate on the tenth anniversary of the Effective Date. Awards outstanding under the 2021 Equity Incentive Plan at the time it is terminated will continue in accordance with their terms and the terms of the 2021 Equity Incentive Plan unless otherwise provided in the applicable agreements. The board of directors of the combined company may suspend or terminate the 2021 Equity Incentive Plan at any time.

 

Amendment of the Plan. The board of directors of the combined company may amend the 2021 Equity Incentive Plan from time to time, but no amendments to the 2021 Equity Incentive Plan will be effective without shareholder approval if such approval is required under applicable laws, regulations or stock exchange rules, including shareholder approval for any amendment that seeks to modify the prohibition on underwater option or SAR re-pricing discussed above.

 

Termination, suspension or amendment of the 2021 Equity Incentive Plan will not adversely affect any outstanding award without the consent of the affected participant, except for amendments necessary to comply with applicable laws or stock exchange rules.

 

Transferability of Awards. In general, no right or interest in any award under the 2021 Equity Incentive Plan may be assigned, transferred, exchanged or encumbered by a participant, voluntarily or involuntarily, except by will or the laws of descent and distribution. However, the Committee may provide that an award (other than an incentive stock option) may be transferable by gift to a participant’s family member or pursuant to a domestic relations order. Any permitted transferee of such an award will remain subject to all the terms and conditions of the award applicable to the participant.

 

 

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Change in Control. If a change in control of us that involves a corporate transaction occurs, then the consequences will be as described below unless the Committee provides otherwise in an applicable award or other agreement with a participant. If outstanding awards are continued, assumed or replaced by the surviving or successor entity in connection with a corporate transaction, and if within twenty-four months after the corporate transaction a participant’s employment or other service is involuntarily terminated without cause, (i) each of the participant’s outstanding options and SARs will become fully vested and exercisable and will remain exercisable for one year, and (ii) each of the participant’s unvested full value awards will fully vest. To the extent vesting of any award continued, assumed or replaced is subject to satisfaction of specified performance goals, those goals shall be deemed to be achieved as of the date of the corporate transaction at the target level of performance and the vested portion of the award at that level of performance is proportionate to the portion of the performance period that has occurred up to the date of such termination of service.

 

If any outstanding award is not continued, assumed or replaced in connection with a change in control involving a corporate transaction, then (i) all outstanding options and SARs will become fully vested and exercisable for a period of time prior to the effective time of the corporate transaction and will then terminate at the effective time of the corporate transaction, and (ii) all full value awards will fully vest immediately prior to the effective time of the corporate transaction. For these purposes, a performance-based award will be considered fully vested at the target level of performance and the vested portion of the award at that level of performance is proportionate to the portion of the performance period that has elapsed prior to the corporate transaction. Alternatively, if outstanding awards are not continued, assumed or replaced, the Committee may elect to cancel such awards at or immediately prior to the effective time of the corporate transaction in exchange for a payment with respect to each award in an amount equal to the excess, if any, between the fair market value of the consideration that would otherwise be received in the corporate transaction for the same number of shares over the aggregate exercise price (if any) for the shares subject to such award (or, if there is no excess, such award may be terminated without payment).

 

Unless otherwise provided in an applicable award agreement or another written agreement, in the event of a change in control of the company that does not involve a corporate transaction, if within twenty-four months after the change in control a participant’s employment or other service is involuntarily terminated without cause, (i) each of the participant’s outstanding options and SARs will become fully vested and exercisable and remain exercisable for one year, and (ii) each of the participant’s unvested full value awards will fully vest. For these purposes, a performance-based award will be considered fully vested at the target level of performance and the vested portion of the award at that level of performance is proportionate to the portion of the performance period that has elapsed prior to the participant’s termination of service.

 

For purposes of the 2021 Equity Incentive Plan, the following terms have the meanings indicated:

 

 

a “change in control” generally refers to the acquisition by a person or group of beneficial ownership of more than 50% of the combined voting power of our voting securities, our continuing directors ceasing to constitute a majority of the board of directors, or the consummation of a corporate transaction as defined below (unless immediately following such corporate transaction all or substantially all of our previous holders of voting securities beneficially own more than 50% of the combined voting power of the resulting entity in substantially the same proportions).

 

 

a “corporate transaction” generally means (i) a sale or other disposition of all or substantially all of our assets, or (ii) a merger, consolidation, share exchange, or similar transaction involving us, regardless of whether we are the surviving entity.

 

Effect of Termination of Employment. Unless otherwise set forth in an applicable award agreement or other written agreement, if a participant ceases to be employed by or provide other services to us and our affiliates, awards under the 2021 Equity Incentive Plan will be treated as set forth in the plan. Upon termination for cause or upon conduct that would constitute cause during any post-termination exercise period, all unexercised option and SAR awards and all unvested portions of any other outstanding awards will be immediately forfeited without consideration. If a participant’s service is terminated due to his or her death or disability, the currently vested and exercisable portions of option and SAR awards may be exercised for a period of one year after the date of such termination. Upon termination for any reason other than death, disability or cause, all unvested and unexercisable portions of any outstanding awards will be immediately forfeited without consideration and the currently vested and

 

 

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exercisable portions of option and SAR awards may be exercised for a period of three months after the date of such termination. However, if a participant thereafter dies during such three-month period, the vested and exercisable portions of the option and SAR awards may be exercised for a period of one year after the date of such termination.

 

Under the 2021 Equity Incentive Plan, “cause” is defined as, unless otherwise defined in a then-effective written agreement (including an award agreement), (i) the participant’s failure or refusal to perform satisfactorily the duties reasonably required (other than by reason of disability) in any material respect; (ii) the participant’s material violation of any law, rule, regulation, or court order, including any commission of, indictment for or conviction of any crime that constitutes a felony or other similar category of crime outside the United States; (iii) conduct of the participant, in connection with their employment or service, that has resulted, or could reasonably be expected to result, in material injury to the business or reputation of our company or any of our affiliates; (iv) a material violation of the policies applicable to the participant, including but not limited to, those relating to sexual harassment, the disclosure or misuse of confidential information, or those set forth in the manuals or policy statements or any breach of any fiduciary duty or non-solicitation, non-competition or similar obligation owed to us; (v) the participant’s act(s) of gross negligence or willful misconduct in the course of their employment or service; or (vi) misappropriation by the participant of any assets or business opportunities of ours.

 

Clawback. The 2021 Equity Incentive Plan provides that, unless otherwise determined by the Committee or provided in an award agreement, all awards granted under the 2021 Equity Incentive Plan shall be and remain subject to any incentive compensation or clawback or recoupment policy currently in effect, as may be adopted by the Board or as may be required by applicable law, and, in each case, as may be amended from time to time.

 

Deferral of Payouts. The Committee may permit or require the deferral by a participant of the receipt of shares or cash in settlement of any full value award under the 2021 Equity Incentive Plan, and will prescribe the terms, conditions and procedures for such deferrals. Shares to effect the settlement of any such deferral will be drawn from and charged against the 2021 Equity Incentive Plan’s share reserve.

 

U.S. Federal Income Tax Consequences of Awards

 

The following is a summary of the principal United States federal income tax consequences to our company and to participants subject to U.S. taxation with respect to awards granted under the 2021 Equity Incentive Plan, based on current statutes, regulations and interpretations.

 

Non-qualified Stock Options. If a participant is granted a non-qualified stock option under the 2021 Equity Incentive Plan, the participant will not recognize taxable income upon the grant of the option. Generally, the participant will recognize ordinary income at the time of exercise in an amount equal to the difference between the fair market value of the shares acquired at the time of exercise and the exercise price paid. The participant’s basis in the common stock for purposes of determining gain or loss on a subsequent sale or disposition of such shares generally will be the fair market value of our common stock on the date the option was exercised. Any subsequent gain or loss will be taxable as a capital gain or loss. The combined company will generally be entitled to a federal income tax deduction at the time and for the same amount as the participant recognizes as ordinary income.

 

Incentive Stock Options. If a participant is granted an incentive stock option under the 2021 Equity Incentive Plan, the participant will not recognize taxable income upon grant of the option. Additionally, if applicable holding period requirements (a minimum of two years from the date of grant and one year from the date of exercise) are met, the participant will not recognize taxable income at the time of exercise. However, the excess of the fair market value of the shares acquired at the time of exercise over the aggregate exercise price is an item of tax preference income potentially subject to the alternative minimum tax. If shares acquired upon exercise of an incentive stock option are held for the holding period described above, the gain or loss (in an amount equal to the difference between the fair market value on the date of sale and the exercise price) upon disposition of the shares will be treated as a long-term capital gain or loss, and the combined company will not be entitled to any deduction. Except in the event of death, if the holding period requirements are not met, the incentive stock option will be treated as one that does not meet the requirements of the Code for incentive stock options and the tax consequences described for nonqualified stock options will generally apply.

 

Other Awards. The current federal income tax consequences of other awards authorized under the 2021 Equity Incentive Plan generally follow certain basic patterns. An award of restricted stock results in income recognition by

 

 

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a participant in an amount equal to the fair market value of the shares received at the time the restrictions lapse and the shares vest, unless the participant elects under Code Section 83(b) to accelerate income recognition and the taxability of the award to the date of grant. Stock unit awards generally result in income recognition by a participant at the time payment of such an award is made in an amount equal to the amount paid in cash or the then-current fair market value of the shares received, as applicable. SAR awards result in income recognition by a participant at the time such an award is exercised in an amount equal to the amount paid in cash or the then-current fair market value of the shares received by the participant, as applicable. In each of the foregoing cases, the company will generally have a corresponding deduction at the time the participant recognizes ordinary income, subject to Code Section 162(m) with respect to covered employees.

 

Section 409A of the Code. The foregoing discussion of tax consequences of awards under the 2021 Equity Incentive Plan assumes that the award discussed is either not considered a “deferred compensation arrangement” subject to Section 409A of the Code, or has been structured to comply with its requirements. If an award is considered a deferred compensation arrangement subject to Section 409A but fails to comply, in operation or form, with the requirements of Section 409A, the affected participant would generally be required to include in income when the award vests the amount deemed “deferred,” would be required to pay an additional 20 percent income tax on such amount, and would be required to pay interest on the tax that would have been paid but for the deferral.

 

New Plan Benefits

 

Because the 2021 Equity Incentive Plan will not become effective until it is approved by our shareholders, the Committee has not yet approved any awards under, or subject to, the 2021 Equity Incentive Plan. In addition, because all awards under the 2021 Equity Incentive Plan are discretionary with the Committee, neither the number nor types of future 2021 Equity Incentive Plan awards to be received by or allocated to particular participants or groups of participants is presently determinable.

 

Vote Required

 

The approval of the 2021 Equity Incentive Plan Proposal requires the affirmative vote of the holders of at least a majority of the shares of CSI common stock present at the special meeting and entitled to vote on this proposal.

 

If you vote ABSTAIN on the 2021 Equity Incentive Plan Proposal, it will have the same effect as a vote against the 2021 Equity Incentive Plan Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have no effect on the outcome of the 2021 Equity Incentive Plan Proposal. If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP on any proposal, your shares will be voted at the special meeting on the 2021 Equity Incentive Plan Proposal according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on the 2021 Equity Incentive Plan Proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on the 2021 Equity Incentive Plan Proposal.

 

OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR SHAREHOLDERS VOTE “FOR” PROPOSAL #7: THE 2021 EQUITY INCENTIVE PLAN PROPOSAL.

 

 

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PROPOSAL #8:
ADVISORY COMPENSATION PROPOSAL

 

Overview

 

In accordance with Section 14A of the Exchange Act, we are providing our shareholders with the opportunity to cast a non-binding, advisory vote on the compensation that has, will or may be paid or become payable to our named executive officers in connection with the Pineapple Merger Transaction, the value of which is set forth in the table entitled “Golden Parachute Compensation” on page 92.

 

As required by Section 14A of the Exchange Act, we are asking our shareholders to vote on the adoption of the following resolution:

 

“RESOLVED, that the compensation that has, will or may be paid or become payable to the Company’s named executive officers in connection with the Pineapple Merger Transaction, as disclosed pursuant to Item 402(t) of Regulation S-K in the proxy statement/prospectus for this meeting under “Proposal #1: Pineapple Merger Proposal – Interests of Our Directors and Executive Officers in the Pineapple Merger Transaction – Golden Parachute Compensation,” including the table, associated footnotes and narrative discussion, is hereby APPROVED.”

 

Shareholders should note that this proposal is advisory in nature and will not be binding on CSI or the CSI board of directors. The vote to approve the named executive officers’ compensation in this Proposal #8 is separate and apart from the vote on any other matter presented at the special meeting. Accordingly, you may vote for the Pineapple Merger Proposal or any other proposal and vote against this Advisory Compensation Proposal and vice versa. Further, because we are contractually obligated to make the potential payments detailed in the sections described above, such compensation may be paid, subject only to the conditions applicable thereto, regardless of the outcome of the vote on this Advisory Compensation Proposal.

 

Vote Required

 

The approval of the Advisory Compensation Proposal requires the affirmative vote of the holders of at least a majority of the shares of CSI common stock present at the special meeting and entitled to vote on this proposal.

 

If you vote ABSTAIN on the Advisory Compensation Proposal, it will have the same effect as a vote against the Advisory Compensation Proposal. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have no effect on the outcome of the Advisory Compensation Proposal. If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP on any proposal, your shares will be voted at the special meeting on the Advisory Compensation Proposal according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on the Advisory Compensation Proposal in the same proportion as all shares of CSI common stock allocated to ESOP participants for which voting instructions were received and were voted on the Advisory Compensation Proposal.

 

OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR SHAREHOLDERS VOTE “FOR” PROPOSAL #8: THE ADVISORY COMPENSATION PROPOSAL.

 

 

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PROPOSAL #9:
ADJOURNMENT PROPOSAL

 

At the special meeting, we are submitting for shareholder consideration Proposal #9, which is a proposal to permit us to adjourn or postpone the special meeting for the purpose of soliciting additional proxies in the event that, at the special meeting, there are insufficient votes to approve the Pineapple Merger Proposal, the Merger Issuance Proposal, the PIPE Issuance Proposal, the Authorized Share Amendment Proposal or the Reverse Stock Split Proposal. This Proposal #9 is referred to in this proxy statement/prospectus as the Adjournment Proposal.

 

Overview

 

In this Adjournment Proposal, we are asking you to authorize the holder of any proxy solicited by the CSI board of directors to vote in favor of adjourning the special meeting, and any later adjournments, to another time and place. If our shareholders approve the Adjournment Proposal, we could adjourn the special meeting, and any adjourned session of the special meeting, to a later date and use the additional time to solicit additional proxies in favor of the Pineapple Merger Proposal, the Merger Issuance Proposal, the PIPE Issuance Proposal, the Authorized Share Amendment Proposal or the Reverse Stock Split Proposal, including the solicitation of proxies from holders of our common stock that have previously voted against any of these proposals. If the Adjournment Proposal is approved, we could adjourn the special meeting without a vote on the Pineapple Merger Proposal, the Merger Issuance Proposal, the PIPE Issuance Proposal, the Authorized Share Amendment Proposal or the Reverse Stock Split Proposal even if we had received proxies representing votes against the such proposal such that it would not be approved by the vote required and seek to convince the holders of those shares to change their votes to votes in favor of such proposal. If you have previously submitted a proxy on any proposal and wish to revoke it upon adjournment or postponement of the special meeting, you may do so.

 

The length of time the special meeting is adjourned or postponed will depend on the circumstances and will be determined by CSI. If the special meeting is adjourned for more than 120 days after the date fixed for the original meeting date, we will be required to provide our shareholders with formal notice of the adjourned meeting.

 

The CSI board of directors believes that if the number of shares of our common stock present or represented at the special meeting is insufficient to approve the Pineapple Merger Proposal, the Merger Issuance Proposal, the PIPE Issuance Proposal, the Authorized Share Amendment Proposal or the Reverse Stock Split Proposal, it is in the best interests of our shareholders to enable us, for a limited period of time, to continue to seek to obtain a sufficient number of additional votes to approve these proposals.

 

Vote Required

 

If a quorum is present at the special meeting, the Adjournment Proposal will be approved by the affirmative vote of holders of at least a majority of the shares of CSI common stock present at the special meeting and entitled to vote on this proposal. If a quorum is not present at the special meeting, the Adjournment Proposal will be approved by the affirmative vote of the holders of a majority of the voting power of our common stock present at the special meeting and no other business will be transacted thereat. Except with respect to shares allocated to you as a participant in the CSI ESOP, if you fail to vote, it will have no effect on the outcome of the vote on the Adjournment Proposal. If you vote ABSTAIN, it would have the same effect as a vote against the Adjournment Proposal.

 

If you are a participant in the CSI ESOP and do not vote the CSI shares allocated to you in the CSI ESOP, your shares will be voted at the special meeting on the Adjournment Proposal according to the provisions of the CSI ESOP, which provide that the trustees will vote these shares on the Adjournment Proposal the same proportion as all shares of CSI common stock allocated to ESOP participants were voted on the Adjournment Proposal.

 

OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT OUR SHAREHOLDERS VOTE “FOR” PROPOSAL #9: THE ADJOURNMENT PROPOSAL.

 

 

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THE MERGER AGREEMENT

 

This section describes the material terms of the merger agreement. Please note that the summary below and elsewhere in this proxy statement/prospectus regarding the merger agreement may not contain all of the information that is important to you. The summary below and elsewhere in this proxy statement/prospectus of the merger agreement does not purport to be complete and is subject to, and qualified in its entirety by, reference to the full text of the merger agreement, a copy of which is attached to this proxy statement/prospectus as Appendix A-1. We encourage you to read the merger agreement carefully in its entirety for a more complete understanding of the Pineapple Merger Transaction, the terms of the merger agreement, and other information that may be important to you.

 

The merger agreement has been included to provide shareholders with information regarding its terms and the Pineapple Merger Transaction described in this proxy statement/prospectus. Neither Pineapple nor CSI intends that the merger agreement will be a source of business or operational information about Pineapple or CSI. The merger agreement contains representations and warranties made by and to Pineapple, CSI and Merger Sub as of specific dates. The statements embodied in those representations and warranties were made for purposes of the merger agreement between the parties and are subject to qualifications and limitations agreed by the parties in connection with negotiating the terms of the merger agreement and may be intended not as statements of fact but rather as a way of allocating the risk to one of the parties if those statements prove to be incorrect. The representations and warranties may also be subject to a contractual standard of materiality or material adverse effect different from those generally applicable to shareholders and reports and documents filed with the SEC and in some cases may be qualified by disclosures made by one party to the other, which are not necessarily reflected in the merger agreement. For the foregoing reasons, the representations and warranties should not be read alone or relied upon as characterizations of the actual state of facts or condition of CSI, Merger Sub, Pineapple or any of their respective subsidiaries or affiliates. Instead, such provisions or descriptions should be read only in conjunction with the other information provided elsewhere in this proxy statement/prospectus.

 

The merger agreement also references certain of the other transaction documents, including the contingent value rights agreement attached to this proxy statement/prospectus as Appendix A-2 and summarized under “AGREEMENTS RELATING TO THE MERGER – Contingent Value Rights Agreement” elsewhere in this proxy statement/prospectus. Certain of the other transaction documents are summarized below, but are not binding upon any party until executed and delivered.

 

Form, Effective Time and Closing of Merger

 

The merger agreement provides that, at the effective time of the merger, Merger Sub, a wholly-owned subsidiary of CSI, will merge with and into Pineapple. Upon completion of the merger, the separate corporate existence of Merger Sub will cease, and Pineapple will continue as the surviving company and as a wholly-owned subsidiary of CSI.

 

The closing of the merger will occur no later than three business days after the satisfaction or waiver of all of the conditions to completion of the merger (other than conditions to be satisfied on the closing date), which conditions are described below under “— Conditions to the Closing of the merger” beginning on page 131 of this proxy statement/prospectus, or on such other date as CSI and Pineapple may mutually agree. At the closing, CSI, Merger Sub and Pineapple will cause a certificate of merger to be filed with the Secretary of State of the State of Delaware. The merger will become effective upon the acceptance of such certificate or at such later time as may be specified in such certificate of merger.

 

Effects of Merger; Merger Consideration

 

At the effective time of the merger, each outstanding unit of Pineapple’s limited liability interests will be cancelled automatically and (other than any excluded units owned by Pineapple, CSI or Merger Sub) converted into the right to receive shares of CSI common stock as merger consideration as described below.

 

All units of Pineapple held by Pineapple, CSI or Merger Sub will be cancelled and no payment will be made with respect to such shares.

 

 

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Each share of Merger Sub common stock issued and outstanding immediately prior to the effective time of the merger will convert into and become one unit of the surviving company, which will represent all of the issued and outstanding units of the surviving company immediately following the effective time of the merger. CSI will automatically be admitted as a member of the surviving company.

 

The certificate of formation and limited liability company agreement of Pineapple will be the certificate of formation and limited liability company agreement of surviving company until thereafter amended by CSI.

 

Merger Consideration

 

Pineapple has four outstanding classes of limited liability company interests, including Class C, Class B, Class A and Class P. Each unit of Pineapple outstanding prior the effective time of the merger will convert automatically into shares of CSI common stock. Under the terms of the merger agreement, CSI has agreed to issue to the members of Pineapple an aggregate of 15.6 million shares of CSI’s common stock, subject to certain adjustments, as consideration for the merger (the “Base Consideration”). The Base Consideration will be increased for any outstanding convertible notes issued by Pineapple in the Convertible Note Financing, which will convert into additional shares of CSI common stock at a rate of one additional share for every $2.00 in unpaid principal and accrued interest on outstanding convertible notes. The Base Consideration will be decreased for any outstanding indebtedness of Pineapple at the closing of the merger in excess of $22.5 million, which will reduce the Base Consideration at a rate one share for every $2.00 of excess indebtedness.

 

In addition to the Base Consideration, the Class A and Class P members of Pineapple may receive “Earnout Consideration” which is up to an additional 13.0 million shares of CSI common stock pursuant to an earnout based on achievement of milestones. Additional shares of common stock will be issued to such members of Pineapple as Earnout Consideration upon the occurrence of the following milestones:

 

 

If Pineapple discharges permitted indebtedness of $22.5 million within three months of closing, then such Class A and Class P members will be entitled to an additional 3.0 million shares of common stock.

 

 

If, within 24 months of closing, the CSI common stock achieves a 30-day VWAP (volume weighted average price) of at least $6.00 per share, such members will be entitled to receive up to 4.0 million shares of common stock (to be increased to 5.0 million if CSI consummates the dispositions of the legacy assets by the 18-month anniversary of the closing).

 

 

If, within 24 months of closing, the CSI common stock achieves a 30-day VWAP of at least $8.00 per share, such members will be entitled to receive up to an additional 4.0 million shares of common stock (to be increased to 5.0 million if CSI consummates the legacy dispositions by the 18-month anniversary of the closing).

 

Specifically,

 

 

each Class C Unit will convert into the right to receive one (1) share of CSI common stock;

 

 

each Class B Unit will convert into the right to receive one share of CSI common stock and the portion of 1.5 million escrow shares issuable to Class B unit holders under the escrow agreement, if any, divided by the number of outstanding Class B units; and

 

 

each Class A Unit and Class P Unit will convert into the right to receive the portion of (A) the Base Consideration, as adjusted; (B) the Earnout Consideration of up to 13.0 million shares of CSI stock to be issued under the terms of the merger agreement, divided by the number of Class A and Class P units outstanding, if any, and (C) the portion of the number of the total 1.5 million escrow shares issuable to Class A and Class P unitholders under the escrow agreement, if any. Holders of Class A and Class P Units have agreed, pursuant to the terms of their applicable joinder agreements, to retain and potentially forfeit to CSI 1,050,000 lockup shares of CSI common stock in order to satisfy certain indemnification obligations under the merger agreement.

 

The merger agreement does not include any adjustment to the total number of shares of CSI common stock that Pineapple unit holders will be entitled to receive for changes in the market price of CSI common stock. Accordingly,

 

 

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the market value of the shares of CSI common stock issued pursuant to the merger will depend on the market value of the shares of CSI common stock at the time the merger closes and could vary significantly from the market value on the date of this proxy statement/prospectus.

 

No fractional shares of CSI common stock will be issuable to holders of Pineapple units pursuant to the merger. In lieu thereof, each holder of units converted who would otherwise have been entitled to receive a fraction of a share of CSI common stock will be entitled to receive in cash (rounded down to the nearest whole cent), without interest, an amount equal to such fractional amount multiplied by the last reported sale price of the CSI common stock on Nasdaq on the last trading day prior to the effective time of the merger.

 

Payment of Merger Consideration

 

Each holder of Pineapple units (including holders of any Pineapple convertible notes that will be converted into Class C Units immediately prior to the effective time of the merger) is required to execute and deliver a joinder agreement to Pineapple as a condition to the issuance of the stock consideration to such holder under the merger agreement. Delivery of a properly executed joinder agreement entitles such delivering holder to payment of such holder’s consideration in accordance with the terms and instructions set forth in such joinder agreement. Upon delivery of a duly completed joinder agreement to CSI or its transfer agent and such other documents as may be reasonably required by the joinder agreement, each Pineapple holder will receive in exchange the number of shares of common stock of CSI such holder is entitled to receive pursuant to the merger agreement. Until a joinder agreement is executed and delivered as required by the merger agreement, each Pineapple unit (and any Pineapple convertible note), will be deemed, from and after the effective time of the merger, to represent only the right to receive the applicable per unit merger consideration under the merger agreement.

 

From and after the effective time, the unit transfer books of the surviving company will be closed, and there will be no further registration of transfers on the unit transfer books of the surviving company of the limited liability company interests in Pineapple that were outstanding immediately prior to the effective time.

 

Immediately after the effective time and upon receipt of the applicable joinder agreement, CSI will pay and deliver the closing merger consideration by directing its transfer agent to issue, in the name of each Pineapple holder, the number of shares of CSI common stock to be issued to such holder pursuant to the merger agreement, as such number of shares are reflected on an allocation certificate signed by a duly authorized officer of Pineapple. CSI will deliver to the Pineapple holders for delivery to the holders the aggregate amount of cash sufficient to pay for any fractional shares of CSI common stock.

 

Contingent Value Rights

 

The shareholders of CSI as of the close of the business day immediately preceding the effective time will receive contractual contingent value rights, or CVRs, per share of CSI common stock then held by them that entitle the holder of the CVR to a portion of the proceeds of dispositions received after the effective time pursuant to the CVR agreement. For more information about the CVR agreement, see “AGREEMENTS RELATING TO THE MERGER” beginning on page 143 of this proxy statement/prospectus.

 

Management and Officers of the Combined Company and Pineapple Following the Merger

 

Pursuant to the merger agreement, at the effective time:

 

 

Pineapple’s limited liability company agreement will be terminated and replaced with an amended and restated limited liability company agreement, reasonably acceptable to CSI, that will provide that Pineapple will cease to be managed by the Pineapple board of managers, and Pineapple will be a member-managed limited liability company managed by CSI, its sole member, and there will be no “manager” within the meaning of the Delaware Limited Liability Company Act, as amended;

 

 

CSI will take action to obtain the resignations of Richard A. Primuth, Steven C. Webster and Michael R. Zapata as members of the CSI board of directors as of the effective time, cause the board of CSI to consist of seven directors and cause to be appointed the board to consist of Roger H.D. Lacey, Randall D. Sampson, Kyle Udseth and Scott Honour and up to three additional

 

 

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directors proposed by Pineapple at least 45 days prior to the effective time and approved by CSI, which approval may not be unreasonably withheld. Designees to the board of directors are expected to satisfy the requisite independence requirements for the combined company board of directors, as well as the sophistication and independence requirements for committee members pursuant to Nasdaq listing requirements.

 

For information about the directors expected to serve on the board of directors of CSI, see section titled “MANAGEMENT OF THE COMBINED COMPANY” beginning on page 199 of this proxy statement/prospectus.

 

Pursuant to the merger agreement, at the effective time, the officers of Pineapple immediately prior to the effective time will be the officers of the Surviving Company. Kyle Udseth will become the Chief Executive Officer of CSI and Mark Fandrich will serve as the Chief Financial Officer of CSI. For information about the executive officers expected to serve as the executive officers of CSI, see section titled “MANAGEMENT OF THE COMBINED COMPANY” beginning on page 199 of this proxy statement/prospectus.

 

Dissenters’ Rights and Appraisal Rights

 

Pursuant to the joinder agreements, each holder of Pineapple units has irrevocably and unconditionally waived, and agreed to cause to be waived and to prevent the exercise of, any rights of appraisal, any dissenters’ rights and any similar rights relating to the merger or any related transaction that such holder or any other person may have by virtue of, or with respect to, any units by the holder.

 

Holders of CSI common stock are not entitled to any rights of appraisal, dissenters’ rights or similar rights in connection with the Pineapple Merger Transaction or other matters to be voted upon at the special meeting.

 

Representations and Warranties

 

The merger agreement contains customary representations and warranties of Pineapple, CSI and Merger Sub for a transaction of this type relating to, among other things:

 

 

corporate organization, organizational and governing documents, authority and power, and similar corporate matters;

 

 

authority to enter into the merger agreement and related agreements;

 

 

capitalization;

 

 

subsidiaries;

 

 

noncontravention and required consents;

 

 

financial statements and, with respect to CSI, documents filed with the SEC and the accuracy of information contained in those documents since January 1, 2018;

 

 

information provided with respect to Pineapple and the accuracy of such information for inclusion in this proxy statement/prospectus;

 

 

absence of certain changes or events, including, with respect to CSI, between September 30, 2020 and the date of the merger agreement and with respect to Pineapple, between its inception and the date of the merger agreement;

 

 

identification of material contracts and the validity of material contracts to which the parties or their subsidiaries are a party and any violation, default or breach under such contracts;

 

 

title to assets and condition of properties of Pineapple;

 

 

intellectual property;

 

 

indebtedness;

 

 

legal proceedings and government orders;

 

 

compliance with laws and permits;

 

 

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employment matters and benefit plans;

 

 

affiliate interests and no ownership of CSI stock by Pineapple;

 

 

environmental matters;

 

 

insurance;

 

 

tax matters;

 

 

any brokerage or finder’s fee or other fee or commission in connection with the merger;

 

 

with respect to CSI, the opinion of its financial advisor; and

 

 

with respect to Merger Sub, the absence of prior business activity and status as a direct wholly-owned subsidiary of CSI.

 

The representations and warranties are, in many respects, qualified by materiality and knowledge, and form the basis for limited indemnification obligations of the Pineapple Class A and Class P holders and some of the conditions to the obligations of CSI and Pineapple to complete the merger.

 

Conduct of Business Pending the Merger; Covenants

 

Pineapple has agreed that, except in connection with the Pre-Closing Financing, the Pre-Closing Acquisition and the Equity Offering contemplated by the merger agreement, or as permitted by the merger agreement or unless CSI will have provided written consent, during the period commencing on the date of the merger agreement and continuing until the closing of the merger, Pineapple will conduct its business in the ordinary course consistent with past practices. Pineapple has also agreed that, except in connection with the Pre-Closing Financing, the Pre-Closing Acquisition and the Equity Offering contemplated by the merger agreement, consented to in writing by CSI, Pineapple will not do any of the following during the period commencing on the date of the merger agreement and continuing until the earlier to occur of the closing of the merger and the termination of the merger agreement:

 

 

(i) declare, set aside or pay any dividend or make any other distribution in respect of any of its units; (ii) split, combine or reclassify any of its units or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its units; (iii) except as contemplated by the merger agreement, purchase, redeem or otherwise acquire any units or other securities or (iv) make any other actual, constructive or deemed distribution of any units or other equity interests or otherwise make any payments to members in their capacity as such;

 

 

issue, deliver, sell, pledge, or otherwise encumber, or subject to any lien any units, any other voting securities or equity interests or any securities convertible into units, or any rights, warranties or options, to acquire any units, voting securities or other convertible securities;

 

 

amend its organizational documents;

 

 

not acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of any business or any person;

 

 

not incur or enter into any commitment for any material capital expenditures;

 

 

not purchase, lease, or otherwise acquire any property or assets for an amount in excess of $100,000, individually or in the aggregate;

 

 

not use the proceeds of the Pre-Closing Financing in any manner not contemplated by the description of the use of proceeds reflected in any offering materials provided in connection with the Pre-Closing Financing or otherwise for operation of Pineapple’s business as contemplated as of the date of the merger agreement;

 

 

not incur any indebtedness for borrowed money or issue any debt securities, make any loans, advances (other than routine travel and business expense advances) or capital contributions to, or investments in, any person;

 

 

not assume, guarantee or endorse the indebtedness of any other person;

 

 

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preserve and maintain all of its permits;

 

 

pay its debts, taxes and other obligations when due;

 

 

maintain the properties and assets owned, operated or used by Pineapple in the same condition as they were on the date of the merger agreement, subject to reasonable wear and tear;

 

 

continue in full force and effect without modification all insurance policies, except as required by applicable law;

 

 

defend and protect its properties and assets from infringement or usurpation;

 

 

perform all of its material obligations under all material contracts of Pineapple relating to or affecting its properties, assets or business;

 

 

maintain its books and records in accordance with past practice;

 

 

comply with all applicable laws;

 

 

not take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the merger not being satisfied, or that would impair the ability of any of the parties to consummate the merger in accordance with the terms of the merger agreement or delay such consummation; and

 

 

not take or permit any action that would cause to occur any Company Material Adverse Effect, amendment of Pineapple’s organizational documents, split, reclassification, purchase or acquisition of any membership interests of Pineapple, issuance, sale or disposition of or creation of any encumbrance on any membership interest, or grant any options, warrants or other rights to purchase or obtain membership interests in Pineapple, or take any action or omission outside of the ordinary course of business of Pineapple. See “Conditions to the Closing of the Merger” beginning on page 131 for the definition of Company Material Adverse Effect.

 

Until the closing of the merger, Pineapple must keep CSI reasonably informed of the status of and the material activities, events, and occurrences relating to the Pre-Closing Financing and the Pre-Closing Acquisition, including the achievement of and progress towards satisfaction of the conditions to closing the transactions contemplated by the Pre-Closing Acquisition Agreement. If Pineapple decides to pursue any other acquisitions between the date of the merger agreement and the closing, Pineapple must permit CSI to participate, comment on, advise as to, and consent to any such other acquisitions.

 

CSI has agreed that, except in connection with the dispositions of legacy assets, any pre-closing dividend, the PIPE Offering and amendments to the CSI articles of incorporation, specifically contemplated by the merger agreement, or as otherwise provided in the merger agreement or consented to in writing by Pineapple from the date of the merger agreement until the closing of the merger, CSI will conduct its business only in the ordinary course of business consistent with past practice and CSI must:

 

 

not (i) declare, set aside or pay any dividends on, or make any other distributions in respect of, any of the CSI common Stock or any other equity interests to any shareholder of CSI, (ii) split, combine or reclassify any CSI common stock or any other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of CSI common stock or any other equity interests, except for issuances of capital stock or other equity interests upon the exercise of options outstanding as of the date of the merger agreement in accordance with their present terms, (iii) except as expressly contemplated by the merger agreement, purchase, redeem or otherwise acquire any shares of CSI common stock or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities, or (iv) make any other actual, constructive or deemed distribution in respect of any shares of CSI common stock or other equity interests or otherwise make any payments to shareholders of CSI in their capacity as such;

 

 

not issue, deliver, sell, pledge or otherwise encumber or subject to any lien any CSI common stock, any other voting securities or other equity interests or any securities convertible into, or any

 

 

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rights, warrants or options to acquire, any such CSI common stock, voting securities or other equity interests or convertible securities;

 

 

not amend its organizational documents;

 

 

not acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of any business or any person;

 

 

not incur any indebtedness for borrowed money or issue any debt securities, make any loans, advances (other than routine travel and business expense advances) or capital contributions to, or investments in, any person;

 

 

not assume, guarantee or endorse the indebtedness of any other person;

 

 

preserve and maintain all of its permits;

 

 

pay its debts, taxes and other obligations when due;

 

 

maintain the properties and assets owned, operated or used by CSI in the same condition as they were on the date of the merger agreement, subject to reasonable wear and tear;

 

 

continue in full force and effect without modification all insurance policies, except as required by applicable law;

 

 

defend and protect its properties and assets from infringement or usurpation;

 

 

perform all of its material obligations under all material contracts of CSI relating to or affecting its properties, assets or business;

 

 

maintain its books and records in accordance with past practice;

 

 

comply with all applicable laws;

 

 

not take, or agree to commit to take, any action that would or is reasonably likely to result in any of the conditions to the merger not being satisfied, or that would impair the ability of any of the parties to consummate the merger in accordance with the terms of the merger agreement or delay such consummation; and

 

 

not take or permit any action that would cause to occur any Parent Material Adverse Effect, amendment of CSI’s organizational documents, split, reclassification, purchase or acquisition of any equity interests of CSI, issuance, sale or disposition of or creation of any encumbrance on any equity interest, or grant any options, warrants or other rights to purchase or obtain equity interests in CSI, or take any action or omission outside of the ordinary course of business of CSI consistent with past practice. See “—Conditions to the Closing of the merger” below for the definition of Parent Material Adverse Effect.

 

Conditions to the Closing of the Merger

 

Each party’s obligation to complete the merger is subject to the satisfaction or waiver by each of the parties (where permissible pursuant to applicable law), at or prior to the closing of the merger, of various conditions, which include, in addition to other customary closing conditions, the following:

 

 

The merger agreement and the transactions contemplated by the merger agreement (including the merger) will have been duly approved and adopted by the requisite Pineapple members in accordance with the Delaware Limited Liability Company Act, as amended, and Pineapple’s organizational documents and such approval may not have been rescinded, withdrawn or modified in any way and will remain in full force and effect.

 

 

The merger agreement, the transactions contemplated by the merger agreement (including the merger, the CVR agreement and the issuance by CSI of CSI common stock as Merger Consideration), and an amendment to CSI’s articles of incorporation to increase the quantity of shares of CSI common stock CSI is authorized to issue to a number of shares at least necessary to complete the transactions contemplated by the merger agreement will have been duly approved and adopted by the requisite shareholders of CSI at a special meeting of CSI shareholders in

 

 

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accordance with the MBCA and CSI’s organizational documents. These conditions are the subject of the Pineapple Merger Proposal, the Merger Issuance Proposal and the Authorized Share Amendment Proposal. See “ABOUT THE SPECIAL MEETING” beginning on page 53 for requisite approval information for each of the proposals.

 

 

The registration statement required by the merger agreement for the issuance of CSI common stock as merger consideration will have become effective under the Securities Act and no stop order suspending the effectiveness of the registration statement will have been issued and no proceeding for that purpose, and no similar proceeding with respect to the proxy statement/prospectus, will have been initiated or threatened in writing by the SEC or its staff.

 

 

No governmental authority of competent jurisdiction will have enacted, issued, promulgated, enforced, or entered any laws or governmental orders, whether temporary, preliminary, or permanent, that make illegal, enjoin, or otherwise prohibit consummation of the transactions contemplated by the merger agreement (including the merger and the issuance by CSI of CSI common stock as Merger Consideration) or the disposition of CSI legacy assets contemplated by the merger agreement.

 

 

The amendment to CSI’s articles of incorporation to increase the quantity of shares of CSI common stock CSI is authorized to issue to a number of shares at least necessary to complete the transactions contemplated by the merger agreement will have been filed, accepted and evidence of filing received by CSI from the Secretary of State of the State of Minnesota.

 

The obligation of CSI and Merger Sub to complete the merger is subject to the satisfaction or waiver (where permissible pursuant to applicable law) of the following additional conditions:

 

 

certain fundamental representations and warranties of Pineapple will have been true and correct in all respects on the date of the merger agreement and will be true and correct on the closing date of the merger with the same force and effect as if made on and as of the date on which the merger is to be completed or, if such representations and warranties address matters as of a particular date, then such fundamental representations and warranties will be true and correct as of that particular date;

 

 

all other representations and warranties of Pineapple in the merger agreement and any other certificate delivered by Pineapple under the merger agreement will have been true and correct as of the date of the merger agreement and will be true and correct on the closing date of the merger with the same force and effect as if made on the date on which the merger is to be completed or, to the extent such representations and warranties address matters as of a particular date, then such representations and warranties will be true and correct as of that particular date, except where the failure of these representations and warranties to be true and correct, individually or in the aggregate, has not had and would not reasonably be likely to have a “Company Material Adverse Effect;”

 

 

Pineapple will have performed in all material respects all of its obligations in the merger agreement required to be performed or by it on or before the closing of the merger;

 

 

No “Company Material Adverse Effect” will have occurred since the date of the merger agreement and be continuing;

 

 

Pineapple will have delivered certain certificates and other documents required under the merger agreement for the closing of the merger;

 

 

CSI will have received the CVR agreement in form and substance reasonably satisfactory to CSI, signed by the Rights Agent;

 

 

Pineapple will have consummated the Pre-Closing Acquisition; and

 

 

since the date of the merger agreement, there will have been no “Company Material Adverse Effect” meaning any change, effect, event, circumstance or development that is materially adverse to or has a material adverse effect on (i) the business, assets, liabilities, capitalization, financial condition, or results of operations of Pineapple, taken as a whole, or (ii) the ability of CSI or

 

 

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Merger Sub to consummate the merger or any of the other transactions contemplated by the merger agreement or to perform any of their respective covenants or obligations under the merger agreement; however, that none of the following changes or events caused by or resulting from the following, to the extent arising after the date of the merger agreement, either alone or in combination, will be deemed to be a Company Material Adverse Effect, and none of the following will be taken into account in determining whether there has been or will be a Company Material Adverse Effect:

 

 

the transactions contemplated by the merger agreement, including the merger, or the announcement or pendency thereof;

 

 

changes in prevailing economic or market conditions in the United States or any other jurisdiction in which such entity has substantial business operations (except to the extent those changes have a disproportionate effect on Pineapple relative to the other participants in the industry or industries in which Pineapple operates);

 

 

changes or events affecting the industry or industries in which Pineapple operates generally or competes (except to the extent those changes or events have a disproportionate effect on Pineapple relative to the other participants in the industry or industries in which Pineapple operates);

 

 

changes in generally accepted accounting principles or requirements (except to the extent those changes have a disproportionate effect on Pineapple relative to the other participants in the industry or industries in which Pineapple operates);

 

 

changes in laws, rules or regulations of general applicability or interpretations thereof by any governmental authority (except to the extent those changes have a disproportionate effect on Pineapple relative to the other participants in the industry or industries in which Pineapple operates);

 

 

any natural disaster, pandemic or any outbreak of major hostilities in which the United States is involved or any act of terrorism within the United States or directed against its facilities or citizens wherever located or any governmental response to any of the foregoing (except to the extent those changes or events have a disproportionate effect on Pineapple relative to the other participants in the industry or industries in which Pineapple operates); or

 

 

any failure by Pineapple to meet any internal guidance, budgets, plans, projections or forecasts of its revenues, earnings or other financial performance or results of operations (but not, in the case of this clause), the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition).

 

 

Any event, fact, development, circumstance, change, effect, or occurrence that arises out of a law, directive, guideline or recommendation promulgated by any governmental entity related to COVID-19 will not be deemed, either alone or in combination, to constitute or contribute to a Company Material Adverse Effect, regardless of whether such effect is materially disproportionate.

 

The obligation of Pineapple to complete the merger is subject to the satisfaction or waiver (where permissible pursuant to applicable law) of the following additional conditions:

 

 

certain fundamental representations and warranties of CSI will have been true and correct in all respects on the date of the merger agreement and will be true and correct on the closing date of the merger with the same force and effect as if made on and as of the date on which the merger is to be completed or, if such representations and warranties address matters as of a particular date, then such fundamental representations and warranties will be true and correct as of that particular date;

 

 

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all other representations and warranties of CSI and Merger Sub in the merger agreement will have been true and correct as of the date of the merger agreement and will be true and correct on the closing date of the merger with the same force and effect as if made on the date on which the merger is to be completed or, to the extent such representations and warranties address matters as of a particular date, then such representations and warranties will be true and correct as of that particular date, except where the failure of these representations and warranties to be true and correct, individually or in the aggregate, has not had, and is not reasonably likely to have a material adverse effect on CSI;

 

 

CSI and Merger Sub will have performed or complied with in all material respects all obligations under the merger agreement required by them on or before the closing of the merger;

 

 

No Parent Material Adverse Effect will have occurred since the date of the merger agreement and be continuing;

 

 

CSI will have delivered certain certificates and other documents required under the merger agreement for the closing of the merger; and

 

 

since the date of the merger agreement, there will have been no “Parent Material Adverse Effect” meaning any change, effect, event, circumstance or development that is materially adverse to or has a material adverse effect on (i) the business, assets, liabilities, capitalization, financial condition, or results of operations of CSI or Merger Sub and their subsidiaries, taken as a whole, or (ii) the ability of CSI or Merger Sub to consummate the merger or any of the other transactions contemplated by the merger agreement or to perform any of their respective covenants or obligations under the merger agreement; provided, however, that none of the following changes or events caused by or resulting from, to the extent arising after the date of the merger agreement, either alone or in combination, will be deemed to be a Parent Material Adverse Effect, and none of the following will be taken into account in determining whether there has been or will be a Parent Material Adverse Effect:

 

 

changes in prevailing economic or market conditions in the United States or any other jurisdiction in which such entities have substantial business operations (except to the extent those changes have a disproportionate effect on CSI or Merger Sub and their respective subsidiaries relative to the other participants in the industry or industries in which CSI, Merger Sub and their respective subsidiaries operate);

 

 

changes or events affecting the industry or industries in which CSI and its subsidiaries operate generally (except to the extent those changes or events have a disproportionate effect on CSI and its subsidiaries relative to the other participants in the industry or industries in which CSI, Merger Sub and their respective subsidiaries operate);

 

 

changes in generally accepted accounting principles or requirements (except to the extent those changes have a disproportionate effect on CSI, Merger Sub and their respective subsidiaries relative to the other participants in the industry or industries in which CSI and its subsidiaries operate);

 

 

changes in laws, rules or regulations of general applicability or interpretations thereof by any governmental authority (except to the extent those changes have a disproportionate effect on CSI, Merger Sub and their respective subsidiaries relative to the other participants in the industry or industries in which CSI and its subsidiaries operate);

 

 

any natural disaster, pandemic or any outbreak of major hostilities in which the United States is involved or any act of terrorism within the United States or directed against its facilities or citizens wherever located or any governmental response to any of the foregoing (except to the extent those changes or events have a disproportionate effect on CSI, Merger Sub and their respective subsidiaries relative to the other participants in the industry or industries in which CSI and its Subsidiaries operate);

 

 

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a change in the public trading price of CSI common stock or the implications thereof;

 

 

a change in the trading volume of CSI common stock;

 

 

any failure by CSI to meet any public estimates or expectations of CSI’s revenue, earnings or other financial performance or results of operations for any period;

 

 

any failure by CSI to meet any guidance, budgets, plans or forecasts of its revenues, earnings, or other financial performance or results of operations (but not, in the case of the preceding four clauses, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition);

 

 

the transactions contemplated by the merger agreement, including the merger, or the announcement or pendency thereof; or

 

 

any event, fact, development, circumstance, change, effect, or occurrence that arises out of a law, directive, guideline or recommendation promulgated by any governmental entity related to COVID-19 will not be deemed, either alone or in combination, to constitute or contribute to a CSI Material Adverse Effect, regardless of whether such effect is materially disproportionate.

 

No Solicitation

 

Each of CSI and Pineapple agreed that, subject to certain exceptions, during the pre-closing period, CSI and Pineapple and any of their respective subsidiaries will not, and each party will cause their respective officers, members, employees, agents, attorneys, consultants, contractors, accountants, financial advisors and other authorized representatives, not to, directly or indirectly:

 

 

solicit, seek or initiate or knowingly take any action to facilitate or encourage any offers, inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any “acquisition proposal”, or engage, participate in, or knowingly facilitate, any discussions or negotiations regarding, or furnish any nonpublic information to any person in connection with any inquiries, proposals or offers that constitute or could reasonably be expected to lead to, an acquisition proposal;

 

 

solicit, initiate, encourage, enter into, continue or otherwise participate or engage in any discussions or negotiations regarding any acquisition proposal, or furnish to any person any non-public information or afford any person other than the CSI or Pineapple, as applicable, access to such party’s property, books or records (except pursuant to a request by a governmental authority) in connection with any offers, inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any acquisition proposal;

 

 

take any action to make the provisions of any takeover statute inapplicable to any transactions contemplated by an acquisition proposal; or

 

 

resolve or publicly propose to do any of the foregoing.

 

An “acquisition proposal” means, with respect to the CSI or Pineapple, (a) any inquiry, proposal or offer for a merger, consolidation, dissolution, sale of substantial assets, recapitalization, share exchange, tender offer or other business combination involving such party and its subsidiaries (other than mergers, consolidations, recapitalizations, share exchanges or other business combinations involving solely such party and/or one or more subsidiaries of such party), (b) any proposal for the issuance by such party of 15% or more of its equity securities or (c) any proposal or offer to acquire in any manner, directly or indirectly, 15% or more of the equity securities or consolidated total assets of such party and its subsidiaries, in each case other than the transactions contemplated by the merger agreement, provided that the Pre-Closing Financing, the Equity Offering and the Pre-Closing Acquisition contemplated by the merger agreement will not be considered an acquisition proposal and a disposition of legacy

 

 

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assets contemplated by the merger agreement will not be considered an acquisition proposal as long as the disposition does not involve or relate to any transaction involving the sale or issuance of equity interests of CSI.

 

Notwithstanding those limitations on solicitation, before obtaining the applicable CSI shareholder approvals required to consummate the merger, CSI may furnish nonpublic information regarding CSI and its subsidiaries to, or engage in discussions or negotiations (including solicitation of revised acquisition proposals) with, any qualified third-party regarding a bona fide, written acquisition proposal made or received after the date of the merger agreement, which the CSI board of directors determines in good faith, after consultation with CSI’s outside financial advisors and outside legal counsel, constitutes or would be reasonably likely to result in a “superior proposal”, (which is not withdrawn) as defined below, if:

 

 

CSI receives from the third-party an executed confidentiality agreement containing provisions not less favorable to CSI than those contained in the confidentiality agreement between CSI and Pineapple and containing additional provisions that expressly permit such party to comply with the merger agreement;

 

 

CSI has not otherwise breached the non-solicitation provisions of the merger agreement described above;

 

 

the CSI board of directors has determined that taking such actions would be required to prevent a breach of the fiduciary duties of such board of directors under applicable law; and

 

 

CSI notifies Pineapple prior to furnishing information or entering into any discussion or negotiations with a third-party.

 

A “superior proposal” means with respect to CSI, any bona fide, unsolicited written proposal made by a third party to acquire 50% or more of the equity securities or consolidated total assets of the CSI and its subsidiaries, pursuant to a tender or exchange offer, a merger, a consolidation, business combination or recapitalization or a sale or exclusive license of its assets, (a) on terms which the CSI board of directors determines in its good faith judgment to be more favorable to the holders of the CSI’s capital stock from a financial point of view than the transactions contemplated by the merger agreement (after consultation with its financial and legal advisors), taking into account all the terms and conditions of such proposal and the merger agreement (including any termination or break-up fees and conditions to consummation, as well as any written, binding offer by Pineapple to amend the terms of the merger agreement,) (b) is not subject to any financing condition, (c) is reasonably capable of being completed on the terms proposed without unreasonable delay and (d) includes termination rights no less favorable than the terms set forth in the merger agreement, and in all respects from a third party capable of performing such terms.

 

Member and Shareholder Approval; No Change in the CSI Board Recommendation

 

The members of Pineapple have approved the execution, delivery and performance of the merger agreement and the transactions contemplated by the merger agreement and adopted the merger agreement pursuant to the Delaware Limited Liability Company Act, as amended. The board of managers of Pineapple will take all action to maintain that approval and require any new members to sign a joinder agreement as a condition precedent to becoming a new member.

 

CSI, acting through its board, is obligated under the merger agreement to take all action necessary under applicable legal requirements to call, give notice of, convene and hold a meeting of its shareholders for the purposes of voting on the merger, the transactions contemplated by the merger agreement (including the merger, the CVR agreement and the issuance by CSI of CSI common stock as Merger Consideration), which is the subject of the Pineapple Merger Proposal and the Merger Issuance Proposal, and an amendment to CSI’s articles of incorporation to increase the quantity of shares of CSI common stock it is authorized to issue to a number of shares at least necessary to complete the transactions contemplated by the merger agreement that is the subject of the Authorized Shares Amendment Proposal, as well as the approval of a new equity incentive plan that is the subject of the 2021 Equity Incentive Plan Proposal. Subject to certain exceptions, CSI is obligated to use its reasonable best efforts to solicit from its shareholders proxies in favor of these proposals and to secure any other approval of its shareholders that is required by applicable law to effect the transactions contemplated by the merger agreement. Prior to the special meeting of CSI shareholders to approve the merger, CSI may not adopt, approve or recommend, or publicly propose

 

 

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to adopt, approve or recommend any acquisition proposal, or enter into any alternative acquisition agreement other than as permitted under the merger agreement.

 

Prior to the effective time, the CSI board of directors may not take certain actions defined as a “Parent Board Recommendation Change.” Specifically, the CSI board of directors may not, except as set forth in the merger agreement.

 

 

withhold, withdraw, materially qualify or modify, or publicly propose to withhold, withdraw, materially qualify or modify, the approval or recommendation by the CSI board of directors with respect to the merger or the CSI stock issuance pursuant to the merger agreement;

 

 

fail to include the CSI Board Recommendation in the proxy statement/prospectus;

 

 

adopt, endorse, approve or recommend, or propose publicly to adopt, endorse, approve or recommend, or submit to the vote of any security holders of CSI, any acquisition proposal, or approve any transaction under, or any transaction resulting in any third party becoming an “interested stockholder” under, Section 302A.673 of the MBCA, or authorize, resolve or agree to take any such action;

 

 

fail to recommend against acceptance of any acquisition proposal that is a tender offer or exchange offer, and to expressly reaffirm the CSI Board Recommendation, within ten business days after commencement (or if the CSI Shareholder Meeting is to occur prior to the tenth Business Day, such period ending on the later of (x) the Business Day prior to the CSI Shareholder Meeting and (y) the second Business Day after such request); or

 

 

following the public announcement of an acquisition proposal (or the public announcement of an intention to make an acquisition proposal) fail to issue a press release expressly reaffirming the CSI Board Recommendation within ten business days after Pineapple requests a reaffirmation thereof (or if the CSI shareholder meeting is to occur prior to the tenth business day, such period ending on the later of (x) the business day prior to the CSI shareholder meeting and (y) the second business day after such request).

 

Notwithstanding the foregoing, if at any time after the date of the merger agreement and prior to receipt of the required CSI shareholder approval, CSI receives an unsolicited, bona fide, written acquisition proposal that the CSI board of directors has determined in good faith, after consultation with outside legal counsel and its financial advisors, is or is reasonably expected to lead to a Superior Proposal, then the CSI board of directors may, prior to the time of the required CSI shareholder approval, change its recommendation for approval of the Pineapple Merger Proposal or may terminate the merger agreement in order to enter into a definitive agreement providing for the implementation of such Superior Proposal, in each case if at any time prior to the time, but not after, receipt of the required CSI shareholder approval is obtained, the CSI board of directors has determined in good faith, after consultation with outside legal counsel and its financial advisors, that the failure to make such recommendation change or the failure to terminate the merger agreement would be inconsistent with its fiduciary obligations under applicable law.

 

In the case of a Superior Proposal, the CSI board of directors will not be entitled to exercise its right to make a change in its recommendation unless CSI and its representatives have complied with the non-solicitation, notice and information, negotiation and other provisions of the merger agreement. The CSI board of directors will not be entitled to terminate the merger agreement in order to enter into a definitive agreement providing for the implementation of such Superior Proposal unless concurrently with the termination, CSI pays the Parent Termination Fee.

 

 

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Other Agreements

 

Each of CSI and Pineapple has agreed to:

 

 

subject to confidentiality obligations, provide the other party with reasonable access during normal business hours to such party’s properties, books, contracts, commitments, personnel and records, as the other party may reasonably request;

 

 

take all actions necessary to satisfy the conditions precedent to the consummation of the transactions contemplated by the merger agreement;

 

 

file or otherwise submit all applications, notices, reports and other documents reasonably required to be filed with a governmental entity with respect to the merger; and

 

 

use reasonable best efforts to obtain all third party consents necessary to consummate the transactions contemplated by the merger agreement.

 

CSI and Pineapple agreed that, among other things:

 

 

CSI and Pineapple will jointly prepare and file with the SEC a proxy statement/prospectus to be sent to the shareholders of CSI relating to the meeting of shareholders, and a registration statement on Form S-4 (including a prospectus) in connection with the issuance of CSI common stock in the merger, of which such proxy statement will form a part. In connection therewith, Pineapple agreed to deliver to CSI as promptly as reasonably practicable, Pineapple financial statements audited in accordance with the standards of the Public Company Accounting Oversight Board and an unqualified report of Pineapple’s auditors.

 

 

CSI and Pineapple will each use their respective reasonable best efforts to cause the registration statement to be declared effective as promptly as practicable, ensure that the registration statement complies in all material respects with applicable requirements, and keep the registration statement effective for so long as necessary to complete the merger and the CSI stock issuance.

 

 

CSI and Pineapple will use reasonable best efforts to file or otherwise submit all documents reasonably required to be filed with respect to the transactions contemplated by the merger agreement and the issuance of CSI common stock.

 

 

CSI and Pineapple will reasonably cooperate in good faith to prepare and submit to Nasdaq a notification form for the listing of the shares of CSI common stock to be issued pursuant to the merger agreement and to cause such shares to be approved for listing at or after the effective time.

 

 

At or prior the effective time, CSI will declare, set aside and issue a pre-closing cash dividend to its shareholders of all of its cash and cash equivalents legally available for distribution to shareholders under applicable law, subject to reasonable reserves established by the CSI board of directors in its good faith, reasonable discretion.

 

 

Pineapple will cause certain investor rights and other shareholder rights agreements to be terminated prior to the effective time.

 

 

From and after the effective time, CSI must use commercially reasonable efforts, in cooperation with the CVR Holders’ Representative, to complete the dispositions of the CSI legacy assets as soon as reasonably practicable, and in any case within 18 months of the closing, and make the payments contemplated under the CVR agreement.

 

 

CSI and Pineapple agreed upon the handling of certain tax matters, including CSI’s filing of pre-closing tax returns, splitting of applicable transfer taxes, handling of straddle periods, tax claims and tax refunds.

 

 

Prior to the earlier of the closing and the termination of the merger agreement, each of Pineapple, CSI and the merger Sub agreed to cause their respective officers and employees to use reasonable best efforts to cooperate in connection with the arrangement of a private placement equity offering conducted by CSI and Pineapple in an amount up to $250 million.

 

 

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All rights to indemnification or exculpation existing in favor of the directors, managers and officers of CSI and Pineapple, as provided in their respective organizational documents in effect immediately prior to the effective time, will survive the transactions contemplated by the merger agreement and continue in full force and effect, to the fullest extent permitted under applicable law.

 

 

CSI will maintain, without any lapses in coverage, directors’ and officers’ liability insurance policies from and after the effective time for the benefit of those persons who are currently covered by any comparable insurance policies of CSI as of the date of the merger agreement with respect to matters occurring on or prior to the effective time.

 

Termination of the Merger Agreement

 

The merger agreement may be terminated and the merger may be abandoned at any time prior to the effective time of the merger, whether before or after the required shareholder approvals to complete the merger and related matters have been obtained, as set forth below:

 

 

by mutual written consent of Pineapple and CSI;

 

 

by either CSI or Pineapple if the merger has not been consummated by August 31, 2021 (the ‘Outside Date”); provided, however, in the event that the SEC has not concluded its review of the S-4 Registration Statement or proxy statement/prospectus by such date, then either CSI or Pineapple will be entitled to extend the Outside Date for an additional thirty (30) days;

 

 

by either CSI or Pineapple if a governmental authority of competent jurisdiction will have issued a non-appealable final order, decree or ruling or taken any other action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the merger;

 

 

by either CSI or Pineapple, if at CSI’s shareholder meeting held to approve the merger agreement and merger (including adjournments thereof) the shareholder approval contemplated by the merger agreement was not obtained;

 

 

by Pineapple, at any time prior to the receipt of CSI shareholder approval, if a CSI Board Recommendation Change has occurred or CSI will have materially breached its non-solicitation obligations under the merger agreement;

 

 

by CSI upon material breach of or material failure to perform any of the representations, warranties, covenants or agreements on the part of Pineapple set forth in the merger agreement such that certain conditions in the merger agreement would not be satisfied as of the time of such breach or failure; provided, however, if such breach or failure is curable by Pineapple, then the merger agreement will not terminate as a result of such particular breach or failure unless the breach or failure remains uncured as of the earlier of the tenth (10th) business day following the date of written notice given by CSI to Pineapple of such breach and its intention to terminate the merger agreement or Pineapple’s ceasing to exercise commercially reasonable efforts to cure such breach or failure following delivery of written notice from CSI of such breach or failure and its intention to terminate;

 

 

by Pineapple upon material breach of or material failure to perform any of the representations, warranties, covenants or agreements on the part of CSI set forth in the merger agreement such that certain conditions in the merger agreement would not be satisfied as of the time of such breach or failure; provided, however, if such breach or failure is curable by CSI, then the merger agreement will not terminate as a result of such particular breach or failure unless the breach or failure remains uncured as of the earlier of the tenth (10th) business day following the date of written notice given by Pineapple to CSI of such breach and its intention to terminate the merger agreement or CSI’s ceasing to exercise commercially reasonable efforts to cure such breach or failure following delivery of written notice from Pineapple of such breach or failure and its intention to terminate;

 

 

by CSI if, at any time prior to the receipt of the requisite CSI shareholder approval with respect to the issuance of shares of CSI common stock pursuant to the merger, CSI has received a Superior

 

 

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Proposal (as defined in the merger agreement), CSI will have complied in all material respects with its obligations under the merger agreement with respect to such Superior Proposal, and the CSI board of directors approves, and CSI concurrently with the termination of the merger agreement enters into, a definitive agreement with respect to such Superior Proposal; and

 

 

by CSI if there is a Material Adverse Effect (as defined in the Pre-Closing Acquisition Agreement) under the Pre-Closing Acquisition Agreement.

 

Termination Fees

 

CSI must pay Pineapple a termination fee of$2,500,000, plus applicable costs and expenses up to $750,000 pursuant to the merger agreement, if the merger agreement was terminated (i) by CSI because CSI has received a Superior Proposal, and CSI has complied in all material respects with its non-solicitation obligations and the CSI Board approves and concurrently enters into a definitive agreement with respect to such Superior Proposal, (ii) by Pineapple if prior to receipt of requisite CSI shareholder approval, the CSI Board has made a Parent Board Recommendation Change, failed to re-confirm its recommendation via press release or materially breached its non-solicitation obligations under the merger agreement; and (iii) by either CSI or Pineapple following the occurrence of the Outside Date or the failure to obtain the shareholder vote if Pineapple would have been entitled to terminate for a Parent Board Recommendation Change prior to CSI terminating for the Outside Date or failed CSI shareholder vote, and at the time of such termination an Acquisition Proposal had been made and within six months following such termination CSI enters into a definitive agreement with respect to an Acquisition Proposal and that transaction is subsequently consummated.

 

Pineapple must pay CSI a termination fee of$2,500,000, plus applicable costs and expenses up to $750,000 pursuant to the merger agreement, if the merger agreement was terminated by CSI because Pineapple fails to close the Pre-Closing Acquisition when required and the merger agreement is subsequently terminated by CSI due to Pineapple’s breach or failure to close by the Outside Date.

 

Amendment

 

The merger agreement may be amended by the parties, by written action taken by or on behalf of their respective boards of directors, at any time prior to the effective time, except that after the merger agreement has been adopted and approved by the shareholders of CSI or Pineapple, no amendment which by law requires further approval by the shareholders of CSI or Pineapple, as the case may be, will be made without such further approval.

 

Indemnification by Pineapple Class A and Class P Holders

 

Under the merger agreement, the Class A and Class P Holders of Pineapple, severally and not jointly, by approval of the merger agreement or the execution of a joinder agreement, as applicable, agreed to indemnify, defend and hold harmless CSI and the Surviving Company and each of their respective officers, directors, assigns, successors and controlled affiliates against all liabilities, losses, claims, damages, actions (including informal proceedings), investigations, audits, demands, assessments, judgments, deficiencies, penalties, fines and costs and expenses (including reasonable attorneys’ fees and disbursements, but excluding any compensation associated with internal legal personnel of the indemnified party), to the extent arising out of or directly caused by:

 

 

any breach of the representations or warranties made by Pineapple in Article III or Article IV of the merger agreement or any certificates delivered by Pineapple pursuant to the merger agreement;

 

 

any breach or failure by Pineapple to satisfy or perform any covenant or agreement of Pineapple under the merger agreement or any certificates delivered by Pineapple pursuant to the merger agreement; and

 

 

specified indemnified taxes.

 

The representations, warranties and covenants of Pineapple generally survive for 12 months after the closing, except that the tax representations and warranties survive for the applicable statutes of limitation plus 30 days, and the specified fundamental representations of Pineapple survive until the longer of the expiration the applicable statute of limitations or five years. The obligations of the Class A and Class P Holders to indemnify will not apply unless the

 

 

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aggregate amount of all such damages for covered claims exceeds a basket of $250,000 (except for Fraud or breaches of Company Fundamental Representations as defined in the merger agreement), and the maximum amount is limited (other than for any breach of Company Fundamental Representation or Fraud) to 1,050,000 “Lockup Shares” issued to those holders, and in cases not covered by the foregoing to the amount of the total stock consideration paid to the Pineapple holders. No Class A and Class P Holders is liable (other than with respect to breaches of Company Fundamental Representations or Fraud) in excess of its pro rata shares of the Lock Up Shares, and in any other case, in excess of its pro rata share of the stock consideration received by such member. With respect to any claims for Fraud, the Class A and Class P Holders will be jointly and severally liable, subject to the preceding sentence.

 

In addition, each Pineapple unit holder, by the execution of a joinder agreement, as applicable, agreed to indemnify, defend and hold harmless each the CSI’s indemnified parties against all such damages, to the extent arising out of or directly caused by any breach of the representations, warranties, covenants, or agreements of such holder in such holder’s joinder agreement.

 

In the event the merger is consummated, these indemnification provisions of the merger agreement will be the sole and exclusive remedies of the indemnified parties for any claims for breaches of representations, warranties and covenants of Pineapple or for any other damages arising out of or in connection therewith, except for any remedies that may be available under any other agreement delivered under the merger agreement; in the case of fraud, in which event, any claim with respect to such fraud may be pursued against the Pineapple Class A and Class P Holders jointly and severally; or any indemnified party’s right to seek specific performance or other injunctive or equitable relief.

 

 

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AGREEMENTS RELATING TO THE MERGER

 

Voting Agreement

 

The following is a summary of certain material terms of the voting agreement dated March 1, 2021 by and among Communications Systems, Inc., Pineapple Energy LLC and certain holders of capital stock of Communications Systems, Inc. The summary is not complete and must be read together with the voting agreement, a copy of which is attached as Appendix A-3. We encourage you to read the voting agreement carefully and in its entirety because the rights and obligations of the parties are governed by the express terms of the voting agreement and not by this summary or any other information contained in this proxy statement/prospectus. This summary may not contain all the information about the voting agreement that is important to you.

 

Simultaneously with the execution of the merger agreement, Pineapple entered into the voting agreement with CSI and certain officers and directors of CSI (the “CSI Holders”): Mark D. Fandrich, Anita Kumar, Roger H.D. Lacey, Richard A. Primuth, Randall D. Sampson, Steven C. Webster and Michael R. Zapata. The CSI Holders hold in the aggregate approximately 13.8% of CSI’s common stock outstanding as of March 1, 2021; and as of             , 2021, the record date for the special meeting, the CSI Holders hold approximately 16.3% of CSI’s common stock outstanding. In the event that any of the CSI Holders become the beneficial owners of any additional shares of CSI common stock, then such additional shares will automatically and without any further action become governed by the voting agreement.

 

The voting agreement expressly does not limit or restrict any CSI Holder from taking any action in his or her capacity as director or officer of CSI.

 

Pursuant to the voting agreement, each CSI Holder has agreed, with respect to all voting securities of CSI that such CSI Holder beneficially owns as of the date thereof or thereafter, to:

 

 

appear at any shareholder meeting to be counted as present for calculating a quorum;

 

 

vote

 

 

in favor of the approval of the merger agreement and each of the related transactions (including the CVR agreement and the issuance by CSI of CSI common stock as Merger Consideration);

 

 

against any action or agreement that could breach or is opposed to the merger agreement or any of the related transactions (including the CVR agreement and the issuance by CSI of CSI common stock as Merger Consideration);

 

 

against any extraordinary corporate transaction or other acquisition proposal; and

 

 

against any other shareholder action, agreement or transaction that is intended to or might adversely affect the consummation of the merger and related transactions, provided the voting agreement does not limit or restrict the CSI Holders from voting on the Dispositions (as defined in the merger agreement) or on any matters not explicitly set forth in the voting agreement; and

 

 

grant to and appoint Pineapple as the CSI Holder’s proxy and attorney-in-fact for such securities if the CSI Holder fails to act in accordance with the voting obligations above.

 

No agreement provision should give rise to, or be interpreted to give rise to, a “control share acquisition” or “business combination” with an “interested shareholder” (as such terms are defined in the Minnesota Business Corporation Act). For the avoidance of doubt, in no event will the aggregate amount of CSI shares subject to the voting agreement exceed 19.9% of the issued and outstanding CSI common stock and the voting agreement releases from its provisions such number of shares as may be necessary to cause such aggregate amount to not exceed such percentage.

 

Each CSI Holder has irrevocably and unconditionally waived any rights of appraisal, any dissenters’ rights and any similar rights that such shareholder may have in connection with the merger.

 

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Each CSI Holder also agreed in the voting agreement not to:

 

 

enter into any other voting arrangement, grant a proxy, consent or power of attorney, nor take any action inconsistent with the voting agreement;

 

 

(1) transfer any of the CSI Holder’s covered securities; (2) enter into any agreement, arrangement or understanding with any other person or take any other action that would prevent or disable the CSI Holder from performing his or her obligations under the voting agreement; nor (3) take any action that would result in the CSI Holder not being able to comply with and perform the CSI’s Holder’s covenants under the voting agreement; nor

 

 

violate as shareholders any of the non-solicitation provisions of the merger agreement applicable to CSI representatives.

 

CSI acknowledged the restrictions on each CSI Holder’s covered securities and agreed not to register the transfer of such securities without the prior written consent of Pineapple and agreed to take all other actions reasonably necessary to honor each CSI Holder’s commitments in the voting agreement, including by prohibiting or refusing to effect a violation of the voting agreement.

 

Each CSI Holder, severally and not jointly, provided customary representations and warranties to Pineapple relating to due authority, the validity of the voting agreement, ownership of shares of CSI common stock and the absence of violations, consents, approvals or litigation. Pineapple provided customary representations and warranties to the CSI Holders regarding its existence, due authorization, the validity of the voting agreement, and the absence of violations.

 

The voting agreement will terminate at the earliest of the effective time of the merger, the termination of the merger agreement in accordance with its terms, or such time as provided in a separate mutual written agreement of Pineapple and the CSI Holder.

 

Contingent Value Rights Agreement

 

The following is a summary of certain material terms of the contingent value rights agreement, referred to as the CVR agreement, by and among Communications Systems, Inc., a Rights Agent and the initial CVR Holders’ Representative. Both the Rights Agent and the initial CVR Holders’ Representative will be designated by CSI prior to closing of the merger. The summary is not complete and must be read together with the form of the CVR agreement, a copy of which is attached as Appendix A-2. We encourage you to read the CVR agreement carefully and in its entirety because the rights and obligations of the parties are governed by the express terms of the CVR agreement, as executed and delivered at the closing of the merger, and not by this summary or any other information contained in this proxy statement/prospectus. This summary may not contain all the information about the CVR agreement that is important to you. Additionally, the CVR agreement attached to this proxy statement/prospectus is a form of agreement and is not binding upon any person until executed and delivered in connection with the closing of the merger.

 

The merger agreement contemplates that, at or immediately prior to the closing of the merger, CSI, an agent to be determined (the “Rights Agent”) and a representative to be determined (the “CVR Holders’ Representative”) will enter into the CVR agreement. The rights and obligations of the CVR agreement will become the rights and obligations of the combined company after the closing of the merger. Pursuant to the merger agreement, the shareholders of CSI as of the close of the business day immediately preceding the closing of the merger will receive CVRs that entitle the shareholders to a portion of the proceeds of any divestiture, assignment or other disposition of all assets of CSI and/or its subsidiaries that are related to CSI’s pre-merger business, assets and properties that occur after the closing of the merger (each such transaction, a “Disposition”). CSI common stock that is issued (a) upon the vesting and conversion of CSI stock options under CSI’s 2011 Executive Incentive Compensation Plan, as amended, or (b) in settlement of CSI restricted stock units will be entitled to consideration under the CVR agreement. Each such shareholder of CSI will be entitled to one CVR for each share of CSI common stock held by such shareholder.

 

With respect to any Disposition of all or any part of CSI’s legacy assets that is consummated during the 18-month period following the closing of the merger (the “CVR Term”) (each such disposition, a “Legacy Monetization”), for

 

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which a definitive agreement is entered into prior to the closing of the merger, each CVR will entitle its holder to receive a pro rata portion of 100% of the net proceeds, if any, from each respective item of gross proceeds received by CSI or any of its affiliates regardless of when any such gross proceeds are actually received. With respect to any Legacy Monetization for which a definitive agreement is entered into following the closing of the merger, each CVR will entitle its holder to receive a pro rata portion of 90% of the net proceeds, if any, in respect of each respective item of gross proceeds received by CSI or any of its affiliates as a result of any Legacy Monetization regardless of when any such gross proceeds are actually received. All such payments will be reduced by a reasonable amount to be determined by CSI to be held in a reserve fund (the “Reserve Fund”), not to exceed: (a) in the case of any Legacy Monetization for which a definitive agreement is entered into prior to the closing of the merger, 7.5% of the gross proceeds of such Legacy Monetization, and (b) in the case of any Legacy Monetization for which a definitive agreement is entered into following the closing of the merger, 6.75% of the gross proceeds of such Legacy Monetization, which will be retained in a segregated escrow account (the “CVR Escrow”) in which all net proceeds and the Reserve Fund amounts, if any, will be held until disbursed pursuant to the CVR agreement. Notwithstanding the foregoing, (i) any CVR payment amount that is less than $200,000 will be aggregated with the next subsequent CVR payment amount, and if not paid prior thereto, included in the last CVR payment related to the last Legacy Monetization (the “Final CVR Payment”) and (ii) in no event will any CVR payment, including the Final CVR Payment, be made if the CVR payment amount would be less than $50,000 in the aggregate.

 

For purposes of the CVR agreement:

 

 

“gross proceeds” means all cash or cash proceeds (and the fair market value, as determined by CSI, as of the time of receipt of such non-cash consideration, of all non-cash consideration such as stock or marketable securities) received by CSI from a Legacy Monetization;

 

 

“monetization expenses” means: (a) any expenses incurred or accrued relating to an unpaid invoice by CSI or any of its affiliates as a result of pursuing, negotiating, entering into and closing any Legacy Monetization, fees and out-of-pocket expenses of the Rights Agent and CVR Holders’ Representative and any other brokerage fee, finder’s fee, success fees, transaction fees, service fees, commission, accountant fees, advisor fees, legal fees and similar items incurred as a result of pursuing, negotiating, entering into and closing any Legacy Monetization, provided, however, that, in each case, in no event will the monetization expenses include any administrative or similar expenses or fees payable by CSI in connection with its general overhead; (b) any applicable tax imposed on gross proceeds and payable by CSI or any of its affiliates (regardless of whether the due date for such taxes arises during or after the CVR Term) and, without duplication, any income or other similar taxes payable by CSI or any of its affiliates that would not have been incurred by CSI or any of its affiliates but for the Legacy Monetization or gross proceeds; provided that such taxes will be computed after taking into account any available net operating loss carryforwards or other tax attributes existing as of the closing of the merger actually recognized by CSI or its affiliates; (c) to the extent not paid with CSI’s legacy cash or by revenue generated solely by CSI’s legacy assets prior to the closing of the Legacy Monetization, any expenses incurred by CSI or any of its affiliates in respect of the performance of the CVR agreement following the closing of the merger, including preserving and maintaining any such legacy assets, indemnification expenses with respect to such legacy assets, allocation of rent expenses or in respect of its performance of any contract in connection with any such legacy assets; (d) any loss, liability, damage, judgment, fine, penalty, cost or expense incurred or reasonably expected to be incurred by CSI or any of its affiliates arising out of any third-party claims, demands, actions, or other proceedings or indemnification relating to any Disposition; and (e) to the extent not paid by revenue generated solely by CSI’s legacy assets prior to the closing of the Legacy Monetization, any liabilities borne by CSI or any of its affiliates pursuant to any contract or definitive agreement for any Disposition primarily related to CSI’s legacy assets, including costs or severance payments and benefits arising from the termination thereof and the termination of employees of CSI whose position related primarily to CSI’s legacy assets; provided, that obligations under the change in control agreements related to the persons set forth on Schedule 2 to the CVR agreement will not constitute monetization expenses unless such individuals are notified of termination of employment or the individuals notify CSI of their intent to terminate their employment prior to the closing of the merger; and

 

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“net proceeds” means, with respect to each respective Legacy Monetization, the excess, if any, of (a) all gross proceeds less (b) all monetization expenses. For clarity, to the extent Monetization Expenses exceed gross proceeds for any CVR Payment Period, any excess Monetization Expenses will be applied against gross proceeds in subsequent CVR Payment Periods.

 

Any Reserve Fund amounts in the CVR Escrow established for a Legacy Monetization will be released upon the earlier of: (a) 12 months following the consummation of the applicable Legacy Monetization; and (b) the expiration of any generally applicable indemnity escrow established for purposes of breaches of CSI representations and warranties in any applicable definitive agreement. Thereafter, any such released Reserve Fund amounts will be included by CSI in the CVR payment amount paid on the next CVR Payment Date (as defined below).

 

The CVRs will terminate upon the earlier of (a) the payment of the full amount of all CVR payment amounts to the Rights Agent and the payment of the full amount of all CVR payment amounts to the CVR holders and (b) the expiration of the CVR Term; provided that the CVR agreement will remain in effect and not limit the right of CVR holders to receive the CVR payment amounts to the extent earned prior to the expiration of the CVR agreement or held in the CVR Escrow or Reserve Fund, and the provisions applicable thereto will survive the expiration of the CVR agreement until such CVR payments have been made, if applicable.

 

The CVRs will not be transferable by the CVR holders, except in certain limited circumstances; will not have any voting or dividend rights; will not be certificated or evidenced by any instrument; will not accrue interest; and will not be registered with the SEC or listed for trading on any exchange. It is intended that the CVRs will not constitute securities, or a class of securities, for the purposes of any securities laws. The CVRs will not represent any equity or ownership interest in CSI (or in any constituent company to the merger) or in any legacy assets of CSI or other asset.

 

During the CVR Term, the CVR Holders’ Representative and CSI will cooperate to use commercially reasonable efforts to pursue Legacy Monetizations, and the CVR Holders’ Representative will have the final discretion and decision making authority, not to be unreasonably withheld, over the final terms of each Legacy Monetization, including the particular manner, and upon what terms and conditions each Legacy Monetization is consummated; provided, that, any such Legacy Monetization will require CSI to execute the definitive agreement(s) relating thereto (so long as such definitive agreements do not include unreasonable burdens or obligations on CSI). In addition:

 

 

CSI will not, during the CVR Term, sell, transfer, dispose, spin-off, or license any of its legacy assets or use its legacy cash, except pursuant to a Legacy Monetization agreed to by the CVR Holders’ Representative or in the ordinary course of business of such legacy assets consistent with past practice;

 

 

CSI will not, during the CVR Term, terminate or intentionally materially negatively impact its legacy assets, including by failing to preserve and maintain its legacy assets, without the prior written approval of the CVR Holders’ Representative, which consent will not be unreasonably withheld, conditioned or delayed;

 

 

CSI will pay $        to the CVR Holders’ Representative at the closing of the merger as compensation for services rendered by the CVR Holders’ Representative pursuant to the CVR agreement; and

 

 

The CVR Holders’ Representative, after good faith discussions with CSI, will be entitled to be reimbursed from the CVR Escrow for direct costs and expenses related to any Legacy Monetization.

 

Each CVR holder acknowledges and agrees to the appointment and authority of the CVR Holders’ Representative to act as the exclusive representative, agent and attorney-in-fact of such CVR holder and all CVR holders as set forth in the CVR agreement. Each CVR holder agrees that such CVR holder will not challenge or contest any action, inaction, determination or decision of the CVR Holders’ Representative or the authority or power of the CVR Holders’ Representative and will not threaten, bring, commence, institute, maintain, prosecute or voluntarily aid any action, which challenges the validity of or seeks to enjoin the operation of any provision of the CVR agreement, including the provisions relating to the authority of the CVR Holders’ Representative to act on behalf of such CVR holder and all CVR holders as set forth in the CVR agreement.

 

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Prior to the closing of the merger, CSI will appoint the Rights Agent who will be responsible for distributing the CVRs, keeping a register for the registration of CVRs and distributing the CVR payments to the CVR holders. The Rights Agent will not have any liability for any actions taken or not taken in connection with the CVR agreement, except to the extent of its willful misconduct, fraud, bad faith or gross negligence. CSI will indemnify the Rights Agent for, and hold the Rights Agent harmless against, any loss, liability, claim, demands, suits or expense arising out of or in connection with the Rights Agent’s duties under the CVR agreement, including the costs and expenses of defending the Rights Agent against any claims, charges, demands, suits or loss, unless such loss has been determined by a court of competent jurisdiction to be a result of the Rights Agent’s willful misconduct, fraud, bad faith or gross negligence or for the fees of counsel and expenses in connection with any lawsuit initiated by the Rights Agent on behalf of itself or the CVR holders. The Rights Agent will not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under the CVR agreement or in the exercise of any of its rights or powers. The Rights Agent will undertake to perform such duties and only such duties as are specifically set forth in the CVR agreement. The Rights Agent will report to both the CVR Holders’ Representative and CSI. CSI will pay the fees and expenses of the Rights Agent in connection with the CVR agreement.

 

On or before the 75th day after the end of each calendar quarter during the CVR Term in which a respective item of gross proceeds is received by CSI (a “CVR Payment Date”), CSI will deliver to the Rights Agent and cause the Rights Agent to deliver to the CVR holders, pro rata as to their CVR holdings, the amount of the CVR payment amount. Within 45 days after the end of each CVR Payment Date, CSI will deliver to the CVR Holders’ Representative and Rights Agent a CVR payment statement with reasonable documentation to support its calculation of the applicable CVR payment and monetization expenses. Within 15 days of the CVR Holders’ Representative’s receipt of all supporting information, the CVR Holders’ Representative may deliver a written notice to CSI objecting to CSI’s calculation of the applicable payment owed to the CVR holders under the CVR agreement. Any dispute arising from such objection will be resolved in accordance with the dispute resolution provisions of the CVR agreement or by an independent third party valuation expert selected by CSI and the CVR Holders’ Representative. The fees charged by any valuation expert will be allocated between CSI and the CVR holders (by deduction from the CVR payment amount) in the same proportion that the disputed amount of the CVR payment that was unsuccessfully disputed (as finally determined by the valuation expert) bears to the total disputed amount of the CVR payment amount.

 

Neither CSI nor its affiliates will owe, by virtue of their obligations under the CVR agreement, a fiduciary duty or any implied duties to the CVR holders and the parties to the CVR agreement, and CSI and its affiliates intend for solely the express provisions of the CVR agreement to govern their contractual relationship with respect to the CVRs. Except as expressly set forth in the CVR agreement, none of CSI or any of its subsidiaries will have any obligation or liability whatsoever to any CVR holder relating to or in connection with any action, or failure to act, with respect to the sale of CSI’s legacy assets. Following the CVR Term, CSI will be permitted to take any action in respect of CSI’s legacy assets in order to satisfy any wind-down liabilities associated with its legacy assets.

 

CSI will not consolidate with or merge into any other entity (other than a merger or consolidation where CSI is the surviving corporation) unless the surviving entity expressly assumes payment of amounts on all the CVRs and the performance of all of CSI’s duties and covenants and CSI delivers to the CVR Holders’ Representative and the Rights Agent an officer’s certificate stating that such consolidation or merger complies with the foregoing requirements. If CSI consolidates or merges with another entity after the closing of the merger, no part of the consolidation or merger will give the CVR holders the right to a CVR payment.

 

CSI may not, in whole or in part, assign any of its obligations under the CVR agreement other than as specified in the CVR agreement. The CVR Holders’ Representative may assign any of its rights or obligations under the CVR agreement to any third party (reasonably acceptable to CSI) to serve as a successor CVR Holders’ Representative, provided that such assignee executes a written joinder to the CVR agreement assuming the rights and duties of the CVR Holders’ Representative.

 

Certain amendments of the CVR agreement are permitted by CSI unilaterally at any time, while certain other amendments require the prior written consent of the CVR Holders’ Representative or the consent of not less than a majority of the outstanding CVRs.

 

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Certain Material U.S. Federal Income Tax Consequences of the Receipt of CVRs

 

This discussion under “AGREEMENTS RELATED TO THE MERGER— Contingent Value Rights Agreement—Material U.S. Federal Income Tax Consequences of the Receipt of CVRs” pertaining to the U.S. federal income tax consequences of the receipt of CVRs by CSI U.S. Holders (as defined below), insofar as such discussion constitutes statements of U.S. federal income tax law or legal conclusions, in each case, subject to the facts, assumptions, limitations and exclusions set forth in this proxy statement/prospectus, constitutes the opinion of Ballard Spahr as to the material U.S. federal income tax consequences of the receipt of the CVRs by CSI U.S. Holders. Due to the legal and factual uncertainties regarding the U.S. federal income tax treatment of CVRs, CSI U.S. Holders are urged to consult their tax advisors regarding the tax consequences to them of the receipt of CVRs and the timing and characterization of income, gain or loss resulting from receipt of payments (if any) pursuant to the CVRs.

 

The following discussion is a summary of the material U.S. federal income tax consequences of the receipt of CVRs to CSI U.S. Holders who receive CVRs with respect to CSI common stock, but this discussion does not purport to be a complete analysis of all potential tax consequences that may be relevant to a CSI U.S. Holder. The effects of other U.S. federal tax laws, such as estate and gift tax laws, and any applicable state, local or non-U.S. tax laws are not discussed. This discussion does not address the tax consequences to holders of options, restricted stock units or similar rights to acquire CSI common stock. This discussion is based on the Code, Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the IRS, in each case in effect as of the date hereof. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a CSI U.S. Holder. CSI has not sought and does not intend to seek any rulings from the IRS regarding the matters discussed below. There can be no assurance the IRS or a court will not take a position contrary to that discussed below regarding the tax consequences of the receipt of CVRs.

 

This discussion is limited to CSI U.S. Holders that hold CSI common stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to a CSI U.S. Holder’s particular circumstances, such as the impact of the alternative minimum tax or the Medicare contribution tax on net investment income. In addition, it does not address consequences relevant to CSI U.S. Holders subject to special rules, including, without limitation:

 

 

brokers, dealers or traders in securities; banks; insurance companies; other financial institutions; mutual funds;

 

 

real estate investment trusts; regulated investment companies; tax-exempt organizations or governmental organizations;

 

 

pass-through entities such as partnerships, S corporations, disregarded entities for federal income tax purposes and limited liability companies (and investors therein);

 

 

persons who are not “United States persons” within the meaning of Section 7701(a)(30) of the Code;

 

 

shareholders who are subject to the alternative minimum tax provisions of the Code;

 

 

persons who hold their shares of CSI common stock as part of a hedge, wash sale, synthetic security, conversion transaction, or other integrated transaction;

 

 

persons that have a functional currency other than the U.S. dollar; traders in securities who elect to apply a mark-to-market method of accounting; and

 

 

certain expatriates or former citizens or long-term residents of the United States.

 

If an entity treated as a partnership for U.S. federal income tax purposes holds CSI common stock, the tax treatment of a partner in the partnership should depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding CSI common stock and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.

 

This summary is for information purposes only and is not intended to be, and should not be construed to be, legal, business or tax advice to any particular CSI U.S. Holder. This summary does not take into account your particular

 

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circumstances and does not address consequences that may be particular to you. Therefore, you should consult your tax advisors with respect to the application of the U.S. federal income tax laws to their particular situations as well as any tax consequences of the receipt of CVRs and any payments made pursuant thereto arising under the U.S. federal estate or gift tax laws or under the laws of any state, local or non-U.S. taxing jurisdiction or under any applicable income tax treaty.

 

For purposes of this discussion, a “CSI U.S. Holder” is a beneficial owner of CSI common stock that, for U.S. federal income tax purposes, is or is treated as:

 

 

an individual who is a citizen or resident of the United States;

 

 

a corporation or any other entity taxable as a corporation created or organized in or under the laws of the United States or any state or political subdivision thereof;

 

 

a trust, the substantial decisions of which are controlled by one or more U.S. persons and which is subject to the primary supervision of a U.S. court, or a trust that validly has elected under applicable Treasury Regulations to be treated as a U.S. person for U.S. federal income tax purposes; or

 

 

an estate, the income of which is subject to U.S. federal income tax regardless of its source.

 

Receipt of CVRs by CSI U.S. Holders

 

This discussion assumes that the distribution of CVRs to CSI U.S. Holders will be treated for U.S. federal income tax purposes as a transaction that is separate and distinct from the CSI reverse stock split. If, contrary to that assumption, the distribution of CVRs to CSI U.S. Holders were integrated for tax purposes with the CSI reverse stock split, this could affect the calculation of the extent to which the distribution constitutes a taxable dividend or capital gain.

 

There is substantial uncertainty as to the tax treatment of the CVRs. No authority is directly on point as to the amount, timing and character of any gain, income or loss with respect to the CVRs. For example, it is possible that contingent value rights with characteristics similar to the CVRs should be treated as a distribution of property with respect to CSI’s stock, a distribution of equity, a “debt instrument” or as an “open transaction” for U.S. federal income tax purposes. Under applicable U.S. tax principles, such questions are inherently factual in nature. It is therefore not possible to express a definitive conclusion as to the U.S. federal income tax treatment of receipt of the CVRs or the payments (if any) made pursuant to the CVRs. Based on the specific characteristics of the CVRs, CSI intends to treat the issuance of the CVRs as a distribution of property with respect to its stock. No assurance can be given, however, that the IRS would not assert, or that a court would not sustain, a position contrary to this treatment or the intended tax consequences summarized below. No advance ruling has been or will be sought from the IRS regarding any matter discussed in this proxy statement/prospectus.

 

In the opinion of Ballard Spahr, CSI’s legal counsel, based on the facts, assumptions, limitations and exclusions set forth in this proxy statement/prospectus, the issuance of the CVRs to CSI U.S. Holders under the terms expressed in the form of the CVR agreement included as Appendix A-2 to this proxy statement/prospectus is more likely than not to be treated as a distribution of property with respect to CSI common stock. Assuming such treatment, each CSI U.S. Holder will be treated as receiving a distribution of property in an amount equal to the fair market value of the CVRs issued to such CSI U.S. Holder on the date of the issuance. This distribution generally should be treated first as a taxable dividend to the extent of the CSI U.S. Holder’s pro rata share of CSI’s current or accumulated earnings and profits (as determined for U.S. federal income tax purposes), next as a non-taxable return of capital to the extent of the CSI U.S. Holder’s basis in its CSI common stock, and finally as capital gain from the sale or exchange of CSI common stock with respect to any remaining value. Though the third quarter of 2021, CSI has positive accumulated earnings and profits, but cannot currently estimate its accumulated earnings and profits position at the time the CSI U.S. Holders receive the distribution of the CVRs. CSI U.S. Holders will receive an IRS Form 1099-DIV notifying them of the portion of the CVR value treated as a dividend or non-dividend distribution for U.S. federal income tax purposes. A CSI U.S. Holder’s initial tax basis in such holder’s CVRs should equal the fair market value of such CVRs on the date of their issuance. The holding period of such CVRs should begin on the day after the date of issuance.

 

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As a result of the above tax treatment, future payments received by a CSI U.S. Holder on a CVR would likely be treated as a non-taxable return of such CSI U.S. Holder’s adjusted tax basis in the CVR to the extent of such basis, and payments in excess of such amount would likely be treated as ordinary income.

 

The treatment of such future payments is, however, uncertain and alternative treatments, while not expected, are possible. One possible treatment is that the CVRs be treated as one or more “debt instruments.” If that were the case, payments received with respect to the CVRs generally would likely be treated as payments in retirement of a “debt instrument,” except to the extent of interest imputed under the Code. If those rules were to apply, interest generally should be imputed under complex rules. In such a case, a CSI U.S. Holder would be required to include any such interest in income on an annual basis, whether or not currently paid.

 

The issuance of the CVRs could also be treated as a distribution of equity for U.S. federal income tax purposes, although CSI believes such treatment is unlikely. In that case, CSI U.S. Holders should not recognize gain or loss as a result of the issuance of the CVRs. Each CSI U.S. Holder’s tax basis in such holder’s CSI common stock would be allocated among such holder’s CSI common stock and such holder’s CVRs in proportion to their relative fair market values on the date of issuance. The holding period of such CVRs should include the holding period of the CSI U.S. Holder in such holder’s CSI common stock. Future payments on a CVR received by a CSI U.S. Holder would likely be treated as dividends to the extent of the CSI U.S. Holder’s pro rata share of CSI’s current or accumulated earnings and profits (as determined for U.S. federal income tax purposes), next as a non-taxable return of capital to the extent of the CSI U.S. Holder’s basis in the CVR, and finally as capital gain from the sale or exchange of the CVR with respect to the remaining value, if any. As discussed above, CSI does not intend to report the issuance of the CVRs as a distribution of equity, and any CSI U.S. Holder reporting the CVR issuance as a distribution of equity may likely face an increased risk of examination by the IRS with respect to such reporting.

 

It is also possible that the issuance of the CVRs could be treated as subject to the “open transaction” doctrine provided that the value of the CVRs on the closing date of the merger cannot be “reasonably ascertained.” If the receipt of CVRs were treated as an “open transaction” for U.S. federal income tax purposes, each CSI U.S. Holder should not immediately take the CVRs into account in determining whether such holder must recognize gain (if any) on the receipt of the CVRs and such holder should not have a tax basis in the CVRs. Rather, the CSI U.S. Holder’s U.S. federal income tax consequences would be determined in general based on whether the CVRs are treated as a distribution of property or of equity at the time the payments with respect to the CVRs are received or deemed received in accordance with the CSI U.S. Holder’s regular method of accounting. It is the position of the IRS, as reflected in Treasury Regulations, that only in “rare and extraordinary cases” is the value of property so uncertain as to warrant “open transaction” treatment. CSI believes “open transaction” treatment is unlikely and does not intend to report the issuance of the CVRs in such a manner. Any CSI U.S. Holder reporting the issuance of CVRs as an open transaction would likely face an increased chance of examination by the IRS with respect to such reporting.

 

Assuming the issuance of the CVRs is treated for U.S. federal income tax purposes as a distribution of property with respect to CSI common stock, the CVRs should generally be treated as capital assets for U.S. federal income tax purposes once issued.

 

Alternative Treatment of the Receipt of CVRs and the Reverse Stock Split as a Single Recapitalization

 

Notwithstanding CSI’s position that the receipt of CVRs and the CSI reverse stock split are appropriately treated as separate transactions, it is possible that the IRS or a court could determine that the receipt of the CVRs and the CSI reverse stock split constitute a single “recapitalization” for U.S. federal income tax purposes. In such case, the tax consequences of the receipt of CVRs and the CSI reverse stock split would differ from those described above and would depend in part on many of the same considerations described above, including whether the CVRs should be treated as property, equity or debt instruments or should be subject to the “open transaction” doctrine. In general, if the CVRs are treated as property and are not subject to the “open transaction” doctrine, then a CSI U.S. Holder should recognize gain (but not loss) equal to the lesser of (i) the fair market value of the CVRs received, and (ii) the excess (if any) of (A) the sum of (1) the fair market value of the CVRs received and (2) the fair market value of the CSI shares received in the CSI reverse stock split, over (B) the CSI U.S. Holder’s adjusted tax basis in the CSI common stock surrendered in the CSI reverse stock split.

 

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This discussion is for informational purposes only and is not tax advice. Each CSI U.S. Holder is encouraged to consult his, her, or its own tax advisor as to the characterization of the receipt of the CVRs and any payments made pursuant thereto, alternative treatments, and the U.S. federal income tax consequences of the receipt of the CVRs and any payments made pursuant thereto, and alternative treatments, and as to any state, local, foreign or other tax consequences based on such CSI U.S. Holder’s particular facts and circumstances.

 

PIPE Offering Agreements

 

Securities Purchase Agreement

 

On September 15, 2021, CSI entered into an amended and restated securities purchase agreement with a group of institutional investors, referred to as the PIPE Investors, for a $32.0 million private placement investment (“PIPE Offering”) in CSI. This amended and restated securities purchase agreement replaced a $25.0 million original securities purchase agreement dated June 28, 2021. Proceeds of this investment will used primarily to fund the cash portion of the Pre-Closing Acquisition, transaction expense and strategic initiatives of the combined company following the closing of the merger, if approved by CSI shareholders. Among other conditions, the closing of the financing is subject to approval of CSI’s shareholders, which is the subject of Proposal #3: PIPE Issuance Proposal. See “DESCRIPTION OF CSI CAPITAL STOCK – Preferred Stock” for a summary of the rights, preferences, restrictions and other matters relating to the CSI Series A convertible preferred stock to be authorized and issued in connection with the transactions contemplated by the securities purchase agreement.

 

Under the terms of the securities purchase agreement, the PIPE Investors have agreed to purchase $32.0 million in newly authorized CSI Series A convertible preferred stock convertible at a price of $3.40 per share into CSI common stock, with five-year warrants to purchase an additional $32.0 million of common shares at that same price. Pursuant to the securities purchase agreement, CSI will sell up to an aggregate of 32,000 shares of its Series A convertible preferred stock, which has a stated value per share of $1,000 and a conversion price per share of $3.40, subject to adjustment. For each $1,000 paid, the PIPE Investor will receive 1 share of Series A convertible preferred stock and a warrant to purchase 294 shares of CSI common stock, which is the number of shares of CSI common stock initially issuable upon conversion of each share of Series A convertible preferred stock. At the closing, each PIPE Investor will deliver to CSI, via wire transfer or a certified check, immediately available funds equal to such PIPE Investor’s subscription amount. Assuming CSI sells 32,000 shares of Series A convertible preferred stock for gross proceeds of $32.0 million, CSI would be obligated to issue approximately 9,411,764 shares of CSI common stock on conversion of Series A convertible preferred stock at the initial $3.40 per share conversion price and CSI also would issue warrants to purchase 9,411,764 shares of CSI common stock at an exercise price of $3.40 per share. The securities purchase agreement contains customary representations and warranties of CSI and the PIPE Investors.

 

The securities purchase agreement provides that the PIPE Offering will close immediately following the consummation of the merger. Thus, the PIPE Investors will invest in the post-merger combined company. The PIPE Investors will not be entitled to receive any cash dividends paid prior to closing of the merger and will not receive CVRs.

 

From the date of the securities purchase agreement until 45 days after the “Effective Date” as defined in the securities purchase agreement, CSI and any subsidiary may not issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of CSI common stock or common stock equivalents or file any registration statement or any amendment or supplement thereto, in each case other than as contemplated pursuant to the registration rights agreement entered into in connection with the PIPE Offering or the merger agreement. Additionally, from the date of the securities purchase agreement until such time as no PIPE Investor holds any of the warrants, CSI is prohibited from effecting or entering into an agreement to effect any issuance by CSI or any of its subsidiaries of CSI common stock or common stock equivalents (or a combination of units thereof) involving a “Variable Rate Transaction.”

 

The securities purchase agreement generally defines a Variable Rate Transaction as a transaction involving CSI common stock and any of the following:

 

 

a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with the trading prices of or quotations for the shares of CSI common stock

 

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a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance or upon the occurrence of specified or contingent events directly or indirectly related to the business of the company or the market for the CSI common stock, or

 

 

any agreement, including, but not limited to, an equity line of credit, whereby the company may issue securities at a future determined price.

 

The securities purchase agreement generally defines the term Effective Date to mean the earliest date that:

 

 

the initial registration statement registering for resale all underlying shares required to be registered under the initial registration statement pursuant to the registration rights agreement has been declared effective by the Commission,

 

 

all of the underlying shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without the requirement for CSI to be in compliance with the current public information requirement under Rule 144 and without volume or manner-of-sale restrictions,

 

 

follows the one-year anniversary of the closing date of the securities purchase agreement provided that a holder of underlying shares is not an affiliate of CSI, or

 

 

all of the underlying shares may be sold pursuant to an exemption from registration under Section 4(a)(1) of the Securities Act without volume or manner-of-sale restrictions and CSI’s counsel has delivered to such holders a standing written unqualified opinion that resales may then be made by such holders of the underlying shares pursuant to such exemption which opinion shall be in form and substance reasonably acceptable to such holders.

 

From the date of the securities purchase agreement until the one year anniversary of the Effective Date as defined in the securities purchase agreement, the PIPE Investors have the right to purchase up to an aggregate of 25% of any issuance by CSI or any of its subsidiaries of CSI common stock or common stock equivalents for cash consideration, other than an exempt issuance as defined in the securities purchase agreement, which includes the issuance of stock-based awards to employees, officer or directors of CSI pursuant to a plan adopted for such purpose, the issuance of securities upon the exercise or exchange of or conversion of any securities issuable under the securities purchase agreement or outstanding on the date of the securities purchase agreement, or the issuance of shares of CSI common stock issued in connection with certain business combinations or strategic transactions.

 

The securities purchase agreement requires that CSI and each of its directors, officers and beneficial owners of 10% or more of its common stock enter into a lock-up agreement at the closing of the PIPE Offering. Under the lock-up agreement, the CSI shareholder party thereto will not, for a period of 30 days from the Effective Date as defined in the securities purchase agreement, offer, sell, contract to sell, grant any option or contract to purchase, purchase any option or contract to sell, hypothecate, pledge or otherwise dispose of any shares of CSI common stock, establish or increase a put equivalent position or liquidate or decrease a call equivalent position, or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the CSI common stock, subject to certain customary exceptions.

 

In connection with the transaction, CSI has agreed to file a registration statement on behalf of the PIPE Investors allowing them to resell the CSI common stock into which the Series A convertible preferred stock is convertible and into which the warrants are exercisable immediately after issuance. Closing of the PIPE Offering also is subject to the consummation of the merger, filing of the Certificate of Designation with the Minnesota Secretary of State to designate the Series A convertible preferred stock, CSI shareholder approval as required by Nasdaq rules and regulations, CSI shareholder approval of an amendment to the CSI articles of incorporation to increase the authorized shares of common stock sufficient to complete the PIPE Offering, and the effectiveness of the resale registration statement, as well as other customary closing conditions. The CSI shareholder approval required by Nasdaq rules and regulations is the subject of Proposal #3: PIPE Issuance Proposal and the CSI shareholder approval of an amendment to the CSI articles of incorporation to increase the authorized shares of common stock is the subject of Proposal #4: Authorized Share Amendment Proposal.

 

The securities purchase agreement may be terminated by any PIPE Investor, as to such PIPE Investor’s obligations only, if the closing of the PIPE Offering has not been consummated on or before March 31, 2022. However, this date may be extended for an additional 30 days in the event that the resale registration statement and/or the proxy

 

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statement/prospectus required for the Pineapple Merger Transaction is still being reviewed or commented on by the SEC. Any termination of a PIPE Investor’s obligations will not affect the obligations of the Company and the other PIPE Investors. Additionally, the securities purchase agreement will terminate automatically in the event of any termination of the merger agreement.

 

PIPE Offering Warrants

 

At the closing of the PIPE Offering under the securities purchase agreement, CSI will issue to each PIPE Investor a warrant to purchase CSI common stock. The number of warrant shares will be based on the purchase price paid by the PIPE Investor. For each $1,000 paid, the PIPE Investor will receive 1 share of Series A convertible preferred stock and a warrant to purchase 294 shares of CSI common stock, which is the number of shares of CSI common stock initially issuable upon conversion of each share of Series A convertible preferred stock. Assuming CSI sells 32,000 shares of Series A convertible preferred stock for gross proceeds of $32.0 million, CSI would be obligated to issue approximately 9,411,764 shares of CSI common stock on conversion of Series A convertible preferred stock at the initial $3.40 per share conversion price and CSI also would issue warrants to purchase 9,411,764 shares of CSI common stock at an exercise price of $3.40 per share.

 

The warrants issued in the PIPE Offering will have an initial exercise price of $3.40 per share, will be exercisable immediately, and will have a term of exercise equal to five years. The exercise price is subject to adjustment if, after the date of the securities purchase agreement, CSI issues, sells, publicly announces the contemplated issuance or sale of, or is deemed to have issued or sold, any shares of CSI common stock for a consideration per share less than a price equal to the exercise price in effect immediately prior to such issuance or sale or deemed issuance or sale. In the case of any such dilutive issuance, the exercise price then in effect will be reduced to an amount equal to the lesser of the consideration per share in such dilutive issuance and the lowest volume weighted average price (VWAP) of the CSI common stock on any trading day during the 5 trading days immediately following the public announcement of the execution of the dilutive issuance. Additionally, the number of warrant shares issuable under the warrant will be increased such that the aggregate exercise price payable under the warrant, after taking into account the decrease in the exercise price in connection with the dilutive issuance, will be equal to the aggregate exercise price prior to such adjustment. However, the warrant provides that no adjustment will be made under these dilutive issuance provisions with respect to or as a result of any of the transactions contemplated by the merger agreement.

 

The warrant may be exercised by payment of the aggregate exercise price in cash or, if the exercise of the warrant occurs after the deadline for effectiveness of the registration statements required by the registration rights agreement and a registration statement covering the issuance or resale of the shares of CSI common stock issuable upon exercise of the warrant is not available for the issuance or resale, by a cashless exercise in which the holder will receive a net number of shares of CSI common stock upon exercise.

 

The warrant contains a call provision under which CSI may call for cancellation of all or any portion of a warrant for which an exercise notice has not yet been delivered for consideration equal to $0.001 per warrant share. This call right may be exercised by CSI upon proper notice only if after the Effective Date as defined in the securities purchase agreement:

 

 

the volume weighted average price (VWAP) of the CSI common stock for each of 10 consecutive trading days exceeds 300% of the then current exercise price,

 

 

the average daily dollar volume for such 10 consecutive trading day measurement period exceeds $5,000,000 per trading day; and

 

 

the holder of the warrant is not in possession of any information that constitutes, or might constitute, material, non-public information which was provided by CSI, any of its subsidiaries, or any of their officers, directors, employees, agents or affiliates.

 

Other than the transactions contemplated by the merger agreement, CSI may not enter into or be party to a “Fundamental Transaction” unless the successor entity to such Fundamental Transaction assumes in writing all of the obligations of CSI under the warrant and all other PIPE Offering transaction documents. In addition, prior to the consummation of any Fundamental Transaction pursuant to which holders of CSI common stock are entitled to receive securities, cash, assets or other property with respect to or in exchange for the CSI common stock, CSI must

 

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make appropriate provision to ensure that, and any applicable successor entity must ensure that, the warrant holder will thereafter have the right to receive upon exercise of the warrant at any time after the consummation of such event, shares of CSI common stock or capital stock of the successor entity or, if so elected by the warrant holder, in lieu of the shares of CSI common stock (or other securities, cash, assets or other property) issuable upon exercise of the warrant prior to such event, such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights) which the warrant holder would have been entitled to receive upon the consummation of such event or the record date resulting in such event, had the warrant been exercised immediately prior to such event or the record date such event (without regard to any limitations on exercise of the warrant). In the event of a Change of Control, at the request of the warrant holder or at the election of CSI delivered before the 60th day after the consummation of such Change of Control, CSI (or the successor entity) will purchase the warrant from the warrant holder by paying to the holder cash in an amount equal to the Black-Scholes value of the remaining unexercised portion of the warrant on the date of such Change of Control.

 

Under the warrant, the term Fundamental Transaction includes one or more related transactions in which CSI, directly or indirectly, will:

 

 

consolidate or merge with or into (whether or not CSI is the surviving corporation) another entity, or

 

 

sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of CSI or any of its “significant subsidiaries” to one or more entities, or

 

 

make, or allow one or more entities to make, or allow CSI to be subject to or have shares of CSI common stock be subject to or party to one or more entities making, a purchase, tender or exchange offer that is accepted by the holders of at least either (i) 50% of the outstanding shares of CSI common stock, (ii) 50% of the outstanding shares of CSI common stock calculated as if any shares of CSI common stock held by all entities making or party to, or affiliated with any entities making or party to, such offer were not outstanding; or (iii) such number of shares of CSI common stock such that all entities making or party to, or affiliated with any entity making or party to, such offer, become collectively the beneficial owners of at least 50% of the outstanding shares of CSI common stock, or

 

 

consummate a stock purchase agreement or other business combination with one or more entities whereby all such entities, individually or in the aggregate, acquire, either (i) at least 50% of the outstanding shares of CSI common stock, (ii) at least 50% of the outstanding shares of CSI common stock calculated as if any shares of CSI common stock held by all the entities making or party to, or affiliated with any entity making or party to, such stock purchase agreement or other business combination were not outstanding; or (iii) such number of shares of CSI common stock such that the entities become collectively the beneficial owners of at least 50% of the outstanding shares of CSI common stock, or

 

 

reorganize, recapitalize or reclassify shares of CSI common stock,

 

 

allow any entity individually or the entities in the aggregate to be or become the beneficial owner, directly or indirectly, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding shares of CSI common stock, (y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding shares of CSI common stock not held by all such entities as of the date of the securities purchase agreement calculated as if any shares of CSI common stock held by all such entities were not outstanding, or (iii) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of CSI common stock or other equity securities of CSI sufficient to allow such entities to effect a statutory short form merger or other transaction requiring other shareholders of CSI to surrender their CSI common stock without approval of the shareholders of CSI.

 

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The warrant contains provisions limiting the exercise by a PIPE Investor based on beneficial ownership. Specifically, a PIPE Investor will be prohibited, subject to certain exceptions, from exercising a warrant to the extent that immediately prior to or after giving effect to such exercise, the PIPE Investor, together with its affiliates and other attribution parties, would own more than 4.99% of the total number of shares of CSI common stock then issued and outstanding, which percentage may be changed at the PIPE Investors’ election to a lower percentage at any time or to a higher percentage not to exceed 9.99% upon 61 days’ notice to CSI.

 

Additionally, so long as the warrant remains outstanding, CSI is obligated to keep at all times keep reserved for issuance a number of shares of CSI common stock at least equal to 200% of the maximum number of shares of CSI common stock as are issuable upon exercise of the outstanding warrants without regard to any limitations on exercise.

 

Registration Rights Agreement

 

In connection with the securities purchase agreement, CSI entered into a registration rights agreement dated September 15, 2021 with the PIPE Investors. Pursuant to the registration rights agreement, CSI has agreed to file a registration statement to register for resale by the PIPE Investors 200% of the CSI common stock issuable upon conversion of the Series A Convertible Preferred Stock and the CSI common stock issuable upon exercise of the warrants issued in the PIPE Offering. Closing of the transactions contemplated by the securities purchase agreement is subject to the effectiveness of this resale registration statement.

 

CSI has agreed to use commercially reasonable efforts to keep the registration statement effective until the date that all registrable securities covered by such registration statement may be sold by non-affiliates without volume or manner-of-sale restrictions pursuant to Rule 144, without the requirement for CSI to be in compliance with the current public information requirement under Rule 144 as determined by counsel to CSI.

 

If CSI fails to file and obtain and maintain effectiveness of the resale registration statements by the deadlines required under the registration rights agreement or fails to maintain the effectiveness of the resale registration statements for specified periods, then CSI shall be obligated to pay, as liquidated damages, to each holder of registrable securities an amount in cash equal to 2.0% of the aggregate purchase price paid by such holder under the securities purchase agreement for an unregistered securities then held by such holder and 2.0% on each monthly anniversary of the date of such failure if not cured, provided that the aggregate of all such payments will not exceed 10.0% of the aggregate purchase price paid by such holder under the securities purchase agreement.

 

These registration rights granted under the registration rights agreement are subject to certain conditions and limitations, including CSI’s right to delay or withdraw a registration statement under certain circumstances. The registration rights agreement also contains customary indemnification and contribution provisions.

 

Hercules-Pineapple Sungevity Asset Purchase and Hercules Debt Financing

 

On December 11, 2020, Pineapple purchased certain assets from Hercules Technology Management Co V, LLC (“Hercules Management”) that it had acquired in a public auction of assets of HoSoPo Corporation, Solar Spectrum LLC, and Solar Spectrum Holdings, LLC conducted by Hercules Capital, Inc. (“Hercules”). The assets sold by Hercules Management to Pineapple related to the Sungevity business and included tangible assets of consisting of fixed assets and inventory, and intangible assets consisting of the Sungevity trade name, and a database comprised of both historical existing and unconverted customer leads.

 

On December 11, 2020, Pineapple and Hercules entered into a loan and security agreement for a term loan to Pineapple in the principal amount of $7,500,000 to finance the acquisition of the Sungevity assets from Hercules Management. Pineapple also issued 3,000,000 of its Class A Units to Hercules as partial consideration for the asset purchase, which represents a 15.0% ownership interest in Pineapple.

 

The term loan is secured by, among other things, the assets purchased by Pineapple. Subject to certain exceptions, the term loan is also secured by Pineapple’s personal property, including without limitation certain receivables, equipment, fixtures, intellectual property, inventory, investment property, deposit accounts, cash, and goods, in each case whether now or hereafter owned or existing. In order to establish the security interest in the Pineapple

 

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intellectual property collateral, Pineapple and Hercules entered into an intellectual property security agreement dated December 11, 2020.

 

Subject to certain conditions, borrowings under the loan and security agreement bears interest at 10.00% per annum with interest compounded daily and added to the principle balance quarterly, in arrears. The loan and security agreement contains customary representations and warranties, covenants and conditions.

 

Under the loan and security agreement, Hercules is entitled to the highest priority lien on the collateral, including with respect to the payment of $2,000,000 of accounts payable that are or may be owed to Lake Street Solar LLC and $350,000 of accounts payable that are or may be owed to Hercules, each of which is subordinate to the payment of Pineapple’s obligations under the loan and security agreement. Under the loan and security agreement, this aggregate $2,350,000 in payables to Pineapple members may only be repaid under certain conditions, including the requirement that no obligations are outstanding under the loan and security agreement and that Pineapple or its subsidiaries has closed on an equity transaction generating at least $30 million in proceeds. The loan and security agreement also contains certain customary events of default and, upon the occurrence and during the continuation of an event of default, the secured obligations will bear interest at the non-default rate per annum plus 4.0%.

 

Pineapple may prepay all or a portion of the outstanding term loan by paying the entire principal balance (or such portion thereof) and all accrued and unpaid interest thereon, in each case without a prepayment premium or fee. Pineapple must prepay all of the outstanding term loan if Pineapple closes on one or more sales of equity (or another form of equity financing) that generates proceeds of at least $25 million in the aggregate or if there is a change in control of Pineapple.

 

The proceeds of the term loan may be used by Pineapple solely to pay related fees and expenses in connection with the loan and security agreement and to purchase the assets described above.

 

The entire term loan principal balance and all accrued but unpaid interest is due and payable on December 10, 2023.

 

Pre-Closing Acquisition Agreement

 

On March 1, 2021, an asset purchase agreement was entered into (the “Pre-Closing Acquisition Agreement”), by and among Pineapple as the Buyer, HEC and E-Gear as the Sellers, and Steven P. Godmere, as representative for the Sellers, or the Seller Representative. Under this Agreement, Pineapple will purchase substantially all of the assets and assume certain of the liabilities of the Sellers. Such acquisition will not occur until the Seller Representative has received satisfactory written confirmation from Pineapple that the transactions contemplated by the Agreement and Plan of Merger are ready to be consummated on the terms and conditions set forth therein, among other customary closing conditions. Additionally, Pineapple shall, on or prior to the closing date of the Pre-Closing Acquisition Agreement, procure a buyer-side representations and warranties insurance policy.

 

The assets acquired will be all of the assets of the Sellers outside of certain cellphones, laptops and vehicles of two Seller employees. Pineapple will assume liabilities, included, but not limited to: (i) the current liabilities of the Sellers, including accounts payable, deferred revenue, accrued expenses, accrued interest, commissions payable, payroll liabilities, and other current liabilities that mainly include payroll accruals, (ii) any liability resulting from, arising out of or caused by any breach of warranty offered by the Sellers and (iii) any liability in respect of any contract outside of contracts related to the above listed excluded assets, but only to the extent that such liabilities thereunder are (a) required to be performed after the closing date of the merger, (b) were incurred in the ordinary course of business and (c) do not relate to any failure to perform, improper performance, warranty or other breach, default or violation by the Sellers.

 

At the closing of the Pre-Closing Acquisition Agreement, Pineapple will pay $12.5 million minus certain transaction expenses and other costs, along with issuing to the Sellers an aggregate of 6,250,000 Class B Units of Pineapple, which will provide the Sellers with the right to receive shares of CSI common stock in the merger pursuant to the terms and conditions of the merger agreement. Additionally, Pineapple will pay certain liabilities of the Sellers and transaction expenses at closing.

 

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After the closing of the Pre-Closing Acquisition Agreement and within three business days thereafter, Sellers must deliver the “Seller Estimate,” which is the Sellers’ good faith estimate of (i) the working capital of the Sellers as of the close of business on such closing date, which, as described in more detail in the Pre-Closing Acquisition Agreement, means the excess of the current assets of Sellers over the current liabilities of the Sellers, (ii) the estimated indebtedness of the Sellers as of immediately prior to such closing date and (iii) the unpaid transaction expenses as of immediately prior to such closing date. Within ninety days following the closing of the Pre-Closing Acquisition Agreement, Pineapple must prepare a statement setting forth the “Certified Total,” which is the amount Pineapple determines to be the actual (i) working capital of the Sellers as of the close of business on such closing date, (ii) indebtedness of the Sellers as of immediately prior to such closing, and (iii) unpaid transaction expenses as of immediately prior to such closing. The Seller Representative may dispute the Certified Total for a period of thirty days after receipt of such statement from Pineapple.

 

Sellers must pay to Pineapple an amount equal to the sum of: (A) the amount by which the working capital in the Seller Estimate exceeds the working capital in the Certified Total, if any, plus (B) the amount by which the indebtedness in the Certified Total exceeds indebtedness in the Seller Estimate, if any, plus (C) the amount by which the transaction expenses in the Certified Total exceeds the transaction expenses in the Seller Estimate, if any. Pineapple must pay to the Sellers an amount equal to the sum of: (A) the amount by which the indebtedness in the Seller Estimate exceeds the indebtedness in the Certified Total, if any, plus (B) the amount by which the transaction expenses in the Seller Estimate exceeds the transaction expenses in the Certified Total, if any. Such payment, if any, must be made within 10 days after the determination of such amount becomes final.

 

After the closing of the Pre-Closing Acquisition Agreement, the Sellers will be subject to a 5 year non-compete agreement, and will be subject to confidentiality obligations with regards to non-public material information related to their businesses. Additionally, both parties shall be subject to certain indemnity obligations after closing, subject to certain limitations.

 

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INFORMATION ABOUT CSI

 

Overview of CSI’s Business

 

Communications Systems, Inc. was formed as a Minnesota corporation in 1969. Suttle, Inc. had been a significant component of CSI’s business from its inception. As a key element of the Company’s strategic plan, however, the Company sold substantially all of Suttle’s business, assets and operations pursuant to two separate transactions occurring in 2019 and 2020. CSI classified the operations of Suttle as discontinued operations for 2020 and 2019.

 

On May 14, 2020, CSI acquired Ecessa Corporation in a reverse triangular merger for $4.6 million in cash. Ecessa designs and distributes software-defined wide area networking (SD-WAN) solutions for businesses through the deployment of field installations of Ecessa Edge®, PowerLink®, and WANworX® controllers and is part of the Company’s Services & Support (S&S) Segment. See Note 5, Business Combinations, of the Notes to the Consolidated Financial Statements of CSI included in this proxy statement/prospectus.

 

On November 3, 2020, CSI acquired the operating assets of privately held IVDesk Minnesota, Inc. (“IVDesk”) from a third-party receiver (“Receiver”) appointed by Hennepin County, Minnesota State District Court Judge for aggregate consideration of $1.4 million, including a $550,000 earnout payment made in March 2021. IVDesk provides private cloud services to small- and mid-size businesses (SMB), with a particular focus on the financial services industry. IVDesk currently services over 85 customers across the U.S. with a focus on a tri-state region with Minnesota at the center. IVDesk’s business model is built on monthly recurring revenue and is included within the S&S Segment. See Note 5, Business Combinations, of the Notes to the Consolidated Financial Statements of CSI included in this proxy statement/prospectus.

 

After giving effect to the Suttle transactions and following the acquisition of Ecessa during the second quarter of 2020 and the merging of certain operations, CSI classified its businesses into the following two segments:

 

 

Electronics & Software (E&S) Segment: The E&S Segment designs, develops and sells Intelligent Edge solutions that provide connectivity and power through Power over Ethernet (“PoE”) products and actionable intelligence to end devices in an Internet of Things (“IoT”) ecosystem through embedded and cloud-based management software. In addition, this segment generates revenue from its traditional products consisting of, media converters, NICs, and Ethernet switches that offer the ability to affordably integrate the benefits of fiber optics into any data network; and

 

 

Services & Support (S&S) Segment: The S&S Segment provides SD-WAN and other technology solutions that address prevalent IT challenges, including network resiliency, security products and services, network virtualization, and cloud migrations, IT managed services, wired and wireless network design and implementation, and converged infrastructure configuration, deployment and management.

 

Non-allocated general and administrative expenses are separately accounted for as “Other” in the Company’s segment reporting. Additionally, any indirect general and administrative costs previously allocated to Suttle are also included in “Other.” Intersegment revenues are eliminated upon consolidation. Further information regarding these segments, including customer and industry concentration, is set forth in “CSI MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS’ starting on page 171 of this proxy statement/prospectus and in Note 14 of the notes to the consolidated financial statements of CSI included in this proxy statement/prospectus.

 

On August 2, 2021, CSI completed the E&S Sale Transaction, which resulted in the disposition of the operations of the E&S Segment. Accordingly, the S&S Segment remaining as the Company’s continuing business operations. A summary of the products, manufacturing and sources of supply, markets and marketing, research and development, competition and order book for both the E&S Segment and the S&S Segment is included below as background to understanding the “CSI MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS” starting on page 171 of this proxy statement/prospectus. No adjustment has been made to the CSI historical financial statements included with this proxy statement/prospectus to reflect the E&S Segment as discontinued operations.

 

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About the Electronics & Software Segment

 

E&S Segment Products. This segment is comprised of CSI’s Transition Networks, Inc. (“Transition Networks” or “Transition”) and Net2Edge Limited (“Net2Edge”) businesses. Transition Networks is based in Minnetonka, Minnesota, and Net2Edge is based in Basingstoke, Hampshire, United Kingdom. The E&S Segment develops, markets and sells PoE switches, media converters, network interface cards (NICs), Ethernet switches, Small Form Factor Pluggable modules (SFP), and other connectivity products under the Transition Networks brand name. Transition sells its products through distributors, resellers, integrators, and original equipment manufacturers (“OEMs”). These media converters, network interface devices (NIDs), and Ethernet Switch products allow network operators to transmit voice and data across networks as well as provide connectivity and power in security and surveillance, smart building, smart city and intelligent transportation applications. Sales by the E&S Segment were $34,496,000 in 2020 compared to $47,007,000 in 2019. International sales accounted for 14% of the E&S Segment’s sales, or $4,775,000 in 2020, compared to $7,236,000, or 15% of the E&S Segment’s sales in 2019.

 

E&S Manufacturing and Sources of Supply. The E&S Segment uses contract manufacturers to manufacture its products in different geographical locations, in addition to OEM partners through which the Company sources product and markets under its own name. In 2020, 91% of the total value of the E&S Segment’s products were manufactured in or sourced from Trade Agreement Acts (TAA) compliant countries (i.e. Taiwan, U.S., U.K.) and the remaining 9% was manufactured in or sourced from other geographies. Offshore sources of supply are subject to certain risks, including political risk.

 

E&S Markets and Marketing. The E&S Segment’s products are used in a broad array of markets including federal government, enterprise, service provider, industrial, security, and surveillance markets. The E&S Segment has a broad customer base that uses its products in a variety of applications. Marketing primarily consists of direct marketing using a sales force, tradeshows, trade magazine advertising, on-line advertising, website, email, social media, and public relations activities. The E&S Segment also provides and participates in advertising and cooperative marketing campaigns with distribution partners.

 

E&S Research and Development. Research and development consists primarily of designing, prototyping, and testing of equipment and supplies associated with developing new products and enhancing existing products. Research and development costs are expensed when incurred and were $2,808,000 in 2020 compared to $3,600,000 in 2019. The E&S Segment also occasionally uses third-party design services and original design manufacturers (“ODM”) to support specific product design requirements.

 

E&S Competition. The E&S Segment faces strong competition across its entire product line. A large number of competitors exist for high-volume products in Ethernet switches and media converters. Low-cost competitors from China and Taiwan are strongest in (i) Asian, (ii) European, Middle Eastern, and African (“EMEA”) and (iii) South American markets. The E&S Segment also faces new competitors as it enters new markets for smart cities, smart buildings, intelligent transportation systems, and higher performance devices for the service provider market.

 

E&S Order Book. Outstanding customer orders for the E&S Segment products were approximately $1,559,000 at March 1, 2021 and $2,813,000 at March 1, 2020. The E&S Segment orders are fulfilled on a relatively short-term basis and therefore CSI does not consider the order book as a significant indicator of longer-term future results.

 

About the Services & Support Segment

 

S&S Segment Overview. This segment is comprised of CSI’s JDL Technologies, Inc. (“JDL Technologies” or “JDL”) and Ecessa Corporation (“Ecessa”) businesses. JDL is based in Fort Lauderdale, Florida, and Ecessa is based in Minnetonka, Minnesota. The S&S Segment provides technology solutions that address prevalent IT challenges, including network resiliency, security products and services, network virtualization, and cloud migrations, IT managed services, wired and wireless network design and implementation, and converged infrastructure configuration, deployment and management. The S&S Segment’s 2020 sales were $8,777,000 compared to 2019 sales of $4,741,000. S&S Segment project and product revenue totaled $5,120,000 in 2020 or 58% of segment sales compared to $2,242,000 in 2019 or

 

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47% of the S&S Segment’s sales. Services revenues for the S&S Segment increased to $3,657,000 in 2020 from $2,499,000 in 2019.

 

S&S Markets and Marketing. The S&S Segment partners with clients to provide complete support for their information technology environments, from servers to software applications, from the network-level down to the desktop level. Under a typical managed services agreement, the S&S Segment provides virtual CIO services to client management, deploys, manages, secures, and supports client’s IT systems and services, provides helpdesk support to the client’s user community, and adds value to the client’s business by enabling the client to focus on its core competencies. The S&S Segment provides an on-premise managed services operations center and secure, state-of-the-art hosted datacenter and partnerships with industry leading solution providers. The S&S Segment also maintains robust partnerships with strategic manufacturers.

 

In 2020, the S&S Segment aggressively targeted its primary vertical markets, healthcare, education and commercial business. In the healthcare market, the S&S Segment’s managed services practice supports clients ranging from single-office providers, to multi-location regional specialists, to their regulated suppliers and business associates. In the education market, a substantial portion of the S&S Segment’s historical revenue has been derived from a school district in Florida. During 2020, the S&S Segment continued to support a multi-year project to provide wireless network services and datacenter upgrades for several hundred public K-12 schools in Florida. Most of the Company’s work on this project was completed in 2020. The S&S Segment was not selected as the primary vendor on the next multi-year project for this Florida school district but was selected as the secondary vendor for structured cabling and enterprise networking. In the commercial business market, the S&S Segment provides support and service to a diverse commercial client set. In 2019, the S&S Segment continued to place emphasis on an expanded set of security solutions layered on top of its Cloud-Based IT Managed Services. This enabled the S&S Segment to provide an even more secure total solution that included security awareness testing and training of client end users which has become increasingly important as threats to an organization’s security are focused more and more on end users as the weakest link.

 

S&S Competition. The Company expects the S&S Segment’s managed services market will continue to grow significantly over the next several years, and as a result will attract many competitors, becoming a highly competitive industry. In response to these factors, S&S Segment’s focus has been to attempt to adapt to the changing needs of its clients through the adoption and productizing of new IT Service technologies as they become available. An example of this would be the addition of several security services to the S&S Segment portfolio in 2019 including security tools to monitor the flow of sensitive data in and on the network, additional cloud-based services through Azure and AWS and enhanced end-point security services.

 

S&S Order Book. Outstanding customer orders and contracts for the S&S Segment products and services were approximately $4,333,000 at March 1, 2021 and $1,546,000 at March 1, 2020. The Company does not consider current outstanding S&S Segment orders and contracts as a significant indicator of longer-term future results.

 

Employees

 

As of March 15, 2021, CSI employed 150 people. Of this number, 92 were within the E&S Segment (including 74 in the U.S. and 18 in the U.K.), 37 within the S&S Segment, and 21 in corporate general and administrative positions. We consider our relations with our employees to be good. None of our employees are currently represented by a labor union.

 

With the closing of the E&S Sale Transaction on August 2, 2021, CSI reduced its E&S Segment workforce. As of October 31, 2021, CSI employed 43 people, with 28 within the S&S Segment and 15 in corporate general and administrative positions.

 

Description of Property

 

CSI conducts administrative, manufacturing and engineering functions at the following facilities:

 

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CSI owns a 105,000 square foot building in Minnetonka, Minnesota where its executive and administrative offices are located. Transition Networks uses this facility for its warehouse, assembly, engineering and administrative operations. JDL Technologies and Ecessa use this facility for some administrative operations. CSI is currently marketing this building for sale.

 

 

CSI owns three buildings in Hector, Minnesota totaling 109,000 square feet of manufacturing space situated on approximately 5 acres. Two of these buildings totaling 26,000 square feet of manufacturing space, are being leased on a short-term basis as part of the March 2020 Suttle transaction. CSI is currently marketing these buildings for sale.

 

 

JDL leases 3,700 square feet of office space in Fort Lauderdale, Florida.

 

 

Net2Edge leases 5,500 square feet of office space in Basingstoke, Hampshire, U.K. As a result of the closing of the E&S Sale Transaction on August 2, 2021, CSI has no obligations, direct or indirect, relating to this office lease, which is leased by Net2Edge as a subsidiary of Lantronix, Inc.

 

CSI believes these facilities will be adequate to accommodate its administrative, manufacturing and distribution needs of the legacy CSI business and in the event the Minnetonka headquarters is sold, that it will be able to find alternative facilities adequate for the needs of the legacy CSI business and the combined company in the even the merger is approved.

 

Legal Proceedings

 

CSI is subject to claims and lawsuits that have been filed in the ordinary course of business. From time to time, the Company brings suit against others to enforce contract rights or property rights, or to collect debts in the ordinary course of business. Management believes that the resolution or settlement of any pending litigation will not have a material adverse effect on the results of operations or liquidity of CSI.

 

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CSI EXECUTIVE COMPENSATION

 

This section discusses CSI’s executive compensation objectives and policies, forms of compensation, and compensation related to services in 2020 paid or potentially payable to the CSI named executive officers identified below under the Summary Compensation Table (“CSI NEOs”), as well as other CSI senior executives (collectively, with the CSI NEOs, the “CSI senior executives”).

 

Compensation Philosophy and Objectives

 

CSI’s approach to executive compensation of CSI senior executives is based on the following objectives:

 

 

To align compensation with shareholder interests;

 

 

To reward both annual and long-term financial performance;

 

 

To provide pay opportunities comparable to opportunities at companies with which the Company competes for management talent; and

 

 

To maintain internally fair and equitable compensation levels and practices.

 

The Company has generally structured its annual and long-term incentive compensation to be “performance-based.” In addition, when determining how much performance-based compensation should be paid in cash versus granting stock options or other awards payable in stock, the CSI compensation committee has generally emphasized paying long-term compensation through equity awards.

 

Role of the Compensation Committee and Information Used to Determine Compensation

 

One of the CSI compensation committee’s primary responsibilities is to review and approve, or recommend for Board approval, compensation paid to CSI’s Chief Executive Officer, the CSI NEOs, and other CSI senior executives. The Compensation Committee (“Committee”) carries out this responsibility pursuant to a Board-approved written charter. The CSI compensation committee is subject to Board oversight, and other Board members frequently participate in deliberations related to executive compensation.

 

Under its charter, the CSI compensation committee has the authority to select, retain, and compensate executive compensation consultants and other experts that it deems necessary to carry out its responsibilities. Since November 2015, the CSI compensation committee has, from time to time, engaged Total Rewards Group (“TRG”), a compensation consulting firm, to study and make recommendations regarding our compensation program. This included an evaluation of our base compensation for CSI senior executives to determine whether we were paying “competitive” compensation and whether our approach to compensation was generally in line with “best practices” for public companies. The CSI compensation committee selected TRG without a recommendation by management and TRG reported directly to the CSI compensation committee.

 

The CSI compensation committee also uses industry surveys to evaluate base compensation and total compensation paid to our CSI senior executives. In some years, the CSI compensation committee has relied on studies prepared by Company employees based on surveys of manufacturing companies of similar size. In other years, this information has been supplied by our compensation consultant. In addition, the CSI compensation committee periodically compares compensation it pays to CSI senior executives to compensation paid by a limited number of specific companies in similar industries, and of similar size and scope (“comparator group”) so that it has comparative data for assessing CSI’s market position in compensation levels and practices.

 

Base Salaries

 

Base salaries of CSI’s executive officers are established by reference to average base salaries paid to executives in similar positions with similar responsibilities using information supplied by compensation consultants and other sources. Base salaries are generally reviewed annually in December of each year and adjustments are made effective as of January 1 of the following year. From time to time, however, promotions and other events require adjustments at other points in the year. While emphasis is placed on measurable financial factors, when it determines base salaries, the CSI compensation committee also considers factors such as development and execution of strategic plans, changes in areas of responsibility, potential for assuming greater responsibility and the development and

 

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management of employees. The CSI compensation committee does not, however, assign specific weights to these various quantitative and qualitative factors in reaching its decisions.

 

The following table shows the title and base salary for each NEO as of March 1, 2021. See the Summary Compensation Table and accompanying disclosure for information about 2020 compensation.

 

Named Executive Officer

 

Position

 

Annual Rate of Base Salary ($)

Roger H. D. Lacey

 

Chief Executive Officer

 

120,000

Anita Kumar

 

Chief Executive Officer

 

280,000

Mark Fandrich

 

Treasurer, Chief Operating Officer, and Chief Financial Officer

 

265,860

Scott Fluegge *

 

Vice President of Information Technology and Digital Transformation

 

225,363

 

*Scott Fluegge served as President and General Technologies, Inc. Manager until of JDL until December 31, 2020. He assumed his current position in January 2021.

 

Annual Bonus Plan

 

Bonuses are paid under CSI’s Annual Bonus Plan (“Bonus Plan”) to CSI NEOs and other CSI senior executives during the course of and following the end of each fiscal year based on achievement in relation to objective financial goals set at the beginning of the fiscal year. These bonuses are intended to provide CSI senior executives with an opportunity to receive additional cash compensation upon attainment of pre-established performance goals.

 

At the beginning of each fiscal year, the CSI compensation committee determines what objective performance measures it will use to assess performance by the Company overall and by each business unit. In addition, the CSI compensation committee assigns a percentage weight to the various measures that are applied when determining the total bonus to be paid to each executive. The CSI compensation committee concurrently determines specific goals for each of these performance measures. Most performance measures for business unit performance have three goals to which achievement is compared, defined as “threshold,” “target” and “maximum,” with “target” goals generally being equal to CSI’s budget for that performance measure.

 

In light of the proposed merger, CSI did not adopt a 2021 Bonus Plan.

 

Bonus Compensation of the CSI Named Executive Officers

 

The potential bonuses for the chief executive officer and chief financial officer were based on overall Company consolidated performance. Each Business Unit Leader is typically paid a bonus based on the performance of the business unit he manages. Whether and to what extent bonus compensation is paid to him is determined following the end the annual period. A comparison of achievement to performance goals is made after twelve months. With respect to these measures, we compare annual results to goals, and a bonus is paid if achievement is at least 80% of the target goal for that performance measure.

 

Concurrent with determining and assigning weight to the various performance measures, and the goals against which achievement is measured, the CSI compensation committee determines a “target” bonus opportunity and a “maximum” bonus opportunity that may be earned by each executive as a percentage of his base salary if actual performance exceeds applicable threshold performance goals. In 2020, the “target” annual bonus opportunity for the CSI senior executives ranged from 25% to 65% of their respective base salaries, and their respective “maximum” bonus opportunities were approximately 37.5% to 97.5% of their respective target bonus opportunities if actual achievement equaled or exceeded maximum performance goals. The target annual bonus for the CEO and CFO were based on consolidated targets for revenue and operating income.

 

The following table presents for 2020: (i) the performance measures for the CSI, Electronics & Software (E&S) Segment, and JDL business units; (ii) the relative weight assigned to each of the performance measures in determining overall performance of the business units; (iii) target achievement levels for each performance measure selected; and (iv) actual 2020 achievement as a percentage of the target goal.

 

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Performance Measure

 

%
Weight

 

Annual Target
Goal ($)

 

% of Target
Performance Achieved

E&S Segment

 

 

 

 

 

 

 

Total Revenue

 

50%

 

43,993,000

 

 

78%

Total Operating Income

 

50%

 

1,683,000

 

 

60%

JDL

 

 

 

 

 

 

 

Total Revenue

 

50%

 

9,188,000

 

 

82%

Total Operating Income

 

25%

 

1,517,000

 

 

60%

Commercial Operating Income

 

25%

 

173,000

 

 

137%

CSI

 

 

 

 

 

 

 

Consolidated Revenue

 

40%

 

52,428,000

 

 

81%

Consolidated Operating Income

 

40%

 

1,500,000

 

 

-180%

 

Bonuses Paid Pursuant to the 2020 Annual Bonus Plan

 

The table below presents the bonus opportunity under the Annual Bonus Plan for the four CSI NEOs as a percentage of their respective base salaries upon achievement of “target” goals for each performance measure (weighted as indicated above), the dollar value of the opportunity at target achievement, and the actual amount paid in cash to the CSI NEOs based on actual achievement in relation to goals for performance measures under CSI’s 2020 Annual Bonus Plan.

 

Named Executive Officer

 

Bonus Opportunity as % of
2020 Base Salary at Target
Achievement

 

 

Dollar Value of Bonus
Opportunity at Target
Achievement

 

 

Annual Bonus Paid
Based on Actual
Achievement

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Roger H. D. Lacey

 

 

65

 

%

 

$

78,000

 

 

$

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Anita Kumar

 

 

35

 

%

 

$

64,750

 

 

$

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mark Fandrich

 

 

50

 

%

 

$

132,930

 

 

$

0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Scott Fluegge

 

 

35

 

%

 

$

87,520

 

 

$

33,810

 

 

Discretionary Bonuses

 

The CSI compensation committee and the Board believe the most appropriate approach to paying annual bonus compensation is one in which executives are measured against predetermined objective performance measures and performance goals. However, from time to time, in limited and extraordinary circumstances, the CSI compensation committee and the Board also believe, it is in the best interest of the Company and its shareholders to pay discretionary bonuses. During late fiscal 2020, the CSI compensation committee determined it was desirable and in the best interest of the Company to pay discretionary bonuses to certain employees based on the CSI compensation committee’s judgment that those individuals made important contributions to the Company or a business unit or segment that should be rewarded apart from achievement in comparison to goals under performance measures. This included a $25,000 discretionary bonus paid to Mr. Fandrich.

 

Overview of Long-Term Incentive Compensation

 

Our CSI senior executives have been given, over the last several years, the opportunity to earn long-term, incentive compensation by means of the following forms of incentive awards:

 

 

Long Term Incentive Awards (“LTI Awards”). LTI Awards provide the opportunity to earn a payout in Company stock or cash after the end of three-year performance periods, to the extent earned by actual performance compared to performance goals.

 

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Stock Options. Stock Options are granted on an annual basis, vest over four years beginning one year after the award is made, and only provide value to the executive if CSI’s stock price increases over the option exercise price.

 

Long-term incentive compensation opportunities for our CSI NEOs and other CSI senior executives are determined under a two-step process. First, the CSI compensation committee determines the total “target” opportunity (expressed as a percentage of base compensation) for each Senior Executive to earn long-term incentive compensation (the “Total Target LTI Opportunity”). Over the last several years this percentage has ranged from 20% to 206% of the Senior Executive’s base compensation. Second, an allocation of the Total Target LTI Opportunity is then made to LTI Awards and Stock Options.

 

LTI Awards

 

LTI Awards may be “Performance Share Units” or “Performance Cash Units.” LTI Awards that are performance-based and payable in stock following the end of the three-year period are defined as “Performance Share Units” or “PSUs” under our incentive compensation plan. The number of PSUs awarded to each NEO is determined by dividing the dollar value of the NEO’s LTI Award by the average price of CSI’s stock over a 20-business-day period beginning on or about March 1 of each year. Each PSU represents the potential issuance of one share of common stock; the number of PSUs issued as shares of stock depends on actual achievement in relation to performance goals for the three-year period.

 

LTI Awards that are performance-based and payable in cash following the end of a three-year period are defined as “Performance Cash Units” or “PCUs” under our incentive compensation plan. Each PCU represents the potential to be paid $1.00, and the number of PCUs that are paid in dollars depends on actual achievement in relation to performance goals for the three-year period.

 

Stock Options

 

The number of shares covered by Stock Options granted to each NEO is determined by dividing the dollar value of the Total Target LTI Opportunity allocated to Stock Options by a value for an option to purchase one share of our stock as determined by the CSI compensation committee. Typically, the CSI compensation committee has used the Black Scholes methodology to determine the value of one option based on a share price of CSI’s stock as of a specific date during the second half of March in each year; the share exercise price of Stock Options is fair market value on the date of grant.

 

2020 Long term Incentive Compensation Awards

 

On May 6, 2020, pursuant to CSI’s Long Term Incentive Compensation Plan (the “LTI Plan”) the CSI compensation committee determined, and the CSI board of directors ratified and approved, the overall design and other features of CSI’s LTI Plan for 2020 as applied to the CSI NEOs.

 

On May 23, 2018, the CSI board of directors announced the formation of a special committee to explore Company strategic options. As a result of the initiative, CSI sold substantially all the operational assets of CSI’s wholly owned subsidiary Suttle in two separate transactions that closed on April 5, 2019 and March 11, 2020 and completed the 2020 Ecessa and IV Desk Acquisitions. In light of these initiatives, in determining the 2020 LTI awards for CSI NEOs and other members of CSI senior management, the CSI compensation committee and CSI board of directors decided on a combination of RSUs, stock options and cash, rather than the PSUs based primarily on the operating results of CSI’s subsidiaries.

 

The CSI compensation committee first determined that the following CSI NEOs would be awarded the total opportunities for long term executive compensation as a percentage of their respective base compensation as follows:

 

164 

 

 

 

 

 

 

 

Long Term
Opportunity in
Dollars (1)

 

 

Allocation of Long-Term Opportunity in Dollars to
Restricted Stock Units and Stock Options

 

 

 

2020
Base
Salary

 

 

%
Base
Salary

 

 

Grant
Date
Dollar
Value

 

 

Value of
LTI
Opportunity
Allocated to
Restricted
Stock Units

 

 

Shares
Covered
by
Restricted
Stock
Units(2)

 

 

Value of
LTI
Opportunity
Allocated to
Stock
Options

 

 

Shares
Covered
by
Option
Grant(3)

 

 

Value of
LTI
Opportunity
Allocated to
Cash

 

Mr. Lacey

 

$

120,000

 

 

 

206

%

 

$

247,500

 

 

$

123,750

 

 

 

23,798

 

 

$

61,875

 

 

 

35,095

 

 

$

61,875

 

Ms. Kumar

 

$

185,000

 

 

 

40

%

 

$

74,000

 

 

$

37,000

 

 

 

7,115

 

 

$

18,500

 

 

 

10,493

 

 

$

18,500

 

Mr. Fandrich

 

$

265,860

 

 

 

50

%

 

$

132,930

 

 

$

66,465

 

 

 

12,782

 

 

$

33,233

 

 

 

18,849

 

 

$

33,233

 

Mr. Fluegge

 

$

225,363

 

 

 

40

%

 

$

90,145

 

 

$

45,073

 

 

 

8,668

 

 

$

22,536

 

 

 

12,782

 

 

$

22,536

 

 

 

(1)

Allocated 75% to LTI Awards and 25% to Stock Options as presented, respectively, in the last five columns.

 

 

(2)

The number of RSUs was determined by dividing the dollar value of the LTI Opportunity Allocated to Restricted Stock Units by the 20-business day average price of CSI’s stock ending May 6, 2020 of $5.20. These vest over a three-year period.

 

 

(3)

We determined the number of shares covered by Stock Options granted to each Senior Executive in 2020 by dividing of the dollar value of the LTI Opportunity Allocated to Stock Options for each executive as discussed above by the Black Scholes value on the grant date of $1.76. The exercise price of each option is $5.39 (the closing market price on May 6, 2020); and each option vests 25% each year beginning May 6, 2021 and expires May 6, 2027.

 

Other Compensation

 

In addition to participating in Company-wide plans providing health, dental and life insurance on the same basis as all of our other U.S.-based employees, our CSI senior executives receive other compensation in various forms, primarily the following:

 

 

An annual contribution to CSI’s Employee Stock Ownership Plan and Trust (“ESOP”).

 

 

An annual matching contribution of up to 50% of each executive’s personal contribution to CSI’s 401(k) Plan up to the first 6% of the personal contribution.

 

 

A car allowance or company car.

 

 

In individual, unique circumstances, additional compensation to support an overseas assignment or travel to a residence away from CSI’s offices.

 

The amount of this other compensation for the CSI named executive officers is presented in the column titled “All Other Compensation” under the “Summary of Executive Compensation Table” and the “Other Compensation Table.”

 

Employment Agreement

 

The Company and Chief Executive Officer Anita Kumar entered into an employment agreement effective as of December 1, 2020. Under this “at-will” employment agreement, the Company agreed to pay Mrs. Kumar a base salary of $280,000 and she was eligible to earn a bonus up to 55% of her base salary. The Company also entered into a change of control agreement with her, as described below. The employment agreement also provided that if the Company terminated her employment prior to December 31, 2021 without a change of control, she would be she would be entitled to receive a guaranteed separation payment equivalent to six months base salary.

 

Consideration of Risk in Compensation

 

The Company believes placing substantial emphasis on long-term incentive compensation encourages executives to direct their efforts to promote the creation of long-term shareholder value and that promoting the creation of long-term value discourages behavior that leads to excessive risk. The CSI compensation committee believes that the

 

165 

 

 

following features of our compensation programs provide incentives for the creation of long-term shareholder value and encourage high achievement by our executive officers without encouraging inappropriate or unnecessary risk taking:

 

 

We balance rewards for short and long-term decision making by providing both annual bonus compensation and long-term incentive compensation.

 

 

Our long-term incentives in the form of stock options become exercisable over a four-year period and remain exercisable for up to seven years from the date of grant.

 

 

Our long-term incentive compensation awards become payable only if, after completion of a multi-year period, actual performance over the period compared to pre-established performance goals justifies a payment.

 

Because of our stock ownership guidelines require all executives to make progress towards owning stock equal to at least one times their base compensation, we believe our CSI NEOs are less likely to expose the Company to inappropriate or unnecessary risks.

 

The financial metrics used in our incentive compensation programs are measures the CSI compensation committee believes drive long-term shareholder value. Moreover, the CSI compensation committee attempts to set ranges for these measures that encourage success without encouraging excessive risk taking to achieve short term results. In addition, all forms of incentive compensation specify a maximum amount that cannot exceed two times the target amount, no matter how much financial performance exceeds the ranges established at the beginning of the year.

 

Summary Compensation Table

 

The following table presents information regarding compensation earned in 2020 and 2019 for services as executive officers (and in the case of Anita Kumar all compensation as an employee in 2020), by Roger H.D. Lacey CSI’s chief executive officer until November 30, 2020, Anita Kumar, CSI’s chief executive officer beginning December 1, 2020, Mark Fandrich, CSI’s chief financial officer, and the other most highly compensated executive officer of the Company in 2020 (together referred to as the “CSI named executive officers” or “CSI NEOs”).

 

Name and Principal Position

 

Year

 

Salary
($)

 

Bonus
($)

 

Stock
Awards
($) (1)

 

Options
Award
($) (2)

 

Non-Equity
Incentive Plan
Compensation
($) (3)

 

All Other
Compensation
($) (4)

 

Total
($)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Roger H.D. Lacey

 

2020

 

120,000

 

--

 

169,254

 

61,875

 

40,637

 

45,248

 

437,014

 

President and Chief Executive Officer

 

2019

 

100,000

 

120,000

 

36,263

 

4,644

 

165,893

 

45,394

 

472,194

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Anita Kumar

 

2020

 

198,250

 

--

 

65,077

 

61,780

 

4,433

 

17,130

 

346,670

 

President and Chief Executive Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mark Fandrich

 

2020

 

265,860

 

25,000

 

88,204

 

33,232

 

19,145

 

23,367

 

454,808

 

Group Business President and

 

2019

 

253,200

 

50,000

 

61,214

 

14,357

 

100,010

 

23,711

 

502,491

 

Chief Financial Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Scott Fluegge

 

2020

 

225,363

 

--

 

61,214

 

22,536

 

48,180

 

19,349

 

376,642

 

President & General Manager

 

2019

 

218,799

 

--

 

42,317

 

9,925

 

16,975

 

21,681

 

309,696

 

JDL Technologies, Inc.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(1)

Represents stock earned under CSI’s Annual Bonus Plan and Long-Term Incentive Plan (“LTI Plan”). The values expressed represent the aggregate grant date fair value computed in accordance with FASB ASC Topic 718 and Item 402(r)(2)(iv) of Regulation S-K, using the assumptions discussed in Note 11, “Stock Compensation” in the notes to consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2020.

 

166 

 

 

 

(2)

The values expressed represent the aggregate grant date fair value computed in accordance with FASB ASC Topic 718 and Item 402(r)(2)(iv) of Regulation S-K, using the assumptions discussed in Note 11, “Stock Compensation,” in the notes to consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2020.

 

 

(3)

Represents amounts earned under CSI’s Short-term Incentive plan. See “Non-Equity Incentive Plan Compensation Table” below.

 

 

(4)

See “Other Compensation Table” below.

 

Non-Equity Incentive Plan Compensation Table

 

The following table provides a breakdown of information under the column “Non-Equity Incentive Plan Compensation” in the preceding Summary Compensation Table.

 

Name

 

Year

 

 

Short-Term Plans ($)

 

 

Long-Term Plans ($)

 

Mr. Lacey

 

2020

 

 

 

 

40,637

 

 

 

2019

 

 

165,893

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Kumar

 

2020

 

 

 

 

4,433

 

 

 

 

 

 

 

 

 

 

 

Mr. Fandrich

 

2020

 

 

 

 

19,145

 

 

 

2019

 

 

100,010

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Fluegge

 

2020

 

 

33,810

 

 

14,370

 

 

 

2019

 

 

16,975

 

 

 

 

Other Compensation Table

 

The following table provides a breakdown of information under the column “Other Compensation” above.

 

 

 

Year

 

 

Contributions to
Defined
Contribution Plan
($)

 

 

Non-Elective
Contributions to CSI
Defined Contribution
Plan ($)

 

 

Other ($)

 

 

Total ($)

 

Mr. Lacey

 

2020

 

 

8,550

 

 

7,630

 

 

29,068

 

 

45,248

 

 

 

2019

 

 

8,400

 

 

5,244

 

 

31,750

 

 

45,394

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Kumar

 

2020

 

 

7,522

 

 

7,522

 

 

2,086

 

 

17,130

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Fandrich

 

2020

 

 

8,550

 

 

9,750

 

 

5,067

 

 

23,367

 

 

 

2019

 

 

8,400

 

 

7,561

 

 

7,750

 

 

23,711

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Fluegge

 

2020

 

 

7,141

 

 

7,141

 

 

5,067

 

 

19,349

 

 

 

2019

 

 

6,965

 

 

6,965

 

 

7,750

 

 

21,681

 

 

 

167 

 

 

Outstanding Equity Awards at Fiscal Year-End

 

The following table sets forth information concerning outstanding equity awards held by Named Executive Officers as of December 31, 2020.

 

 

 

Number of Securities
Underlying Unexercised
Options

 

 

 

 

 

 

 

 

 

Shares or Units of
Stock that have
not Vested

 

 

 

Equity Incentive Plan Awards:
Unearned Shares, Units or Other
Rights that have not Vested

 

Name

 

Exercisable
(#)

 

 

Unexercisable
(#)

 

 

Option Exercise Price
($)

 

 

Option
Expiration
Date

 

 

Number
(#)

 

 

Market
Value
($)

 

 

Number of
(#)

 

 

Market or
Payout Value of
($)

 

Mr. Lacey

 

 

12,195

 

 

 

 

 

 

 

 

11.70

 

 

 

 6/4/2021

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

22,655

 

 

 

--

 

 

 

 

11.65

 

 

 

3/17/2022

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

24,950

 

 

 

--

 

 

 

 

11.09

 

 

 

4/3/2022

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

25,050

 

 

 

--

 

 

 

 

11.05

 

 

 

5/21/2022

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

16,667

 

 

 

--

 

 

 

 

7.34

 

 

 

1/25/2023

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

41,250

 

 

 

--

 

 

 

 

6.85

 

 

 

3/15/2023

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

42,188

 

 

 

14,062

(1)

 

 

 

4.40

 

 

 

3/31/2024

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

30,938

 

 

 

30,937

(2)

 

 

 

3.61

 

 

 

3/9/2025

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

50,000

 

 

 

--

 

 

 

 

2.55

 

 

 

12/12/2025

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1,875

 

 

 

5,625

(3)

 

 

 

2.64

 

 

 

3/28/2026

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

--

 

 

 

35,095

(4)

 

 

 

5.39

 

 

 

5/6/2027

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

9,157

 

 

 

41,847

(5)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

23,798

 

 

 

108,757

(6)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Kumar

 

 

--

 

 

 

10,493

(4)

 

 

 

5.39

 

 

 

5/6/2027

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6,250

 

 

 

18,750

(7)

 

 

 

4.45

 

 

 

11/24/2027

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3,983

 

 

 

18,202

(5)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

7,115

 

 

 

32,516

(6)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5,000

 

 

 

22,850

(8)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Fandrich

 

 

20,000

 

 

 

--

 

 

 

 

5.72

 

 

 

8/29/2023

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

13,275

 

 

 

6,625

(1)

 

 

 

4.40

 

 

 

3/31/2024

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

14,575

 

 

 

14,575

(2)

 

 

 

3.61

 

 

 

3/9/2025

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3,165

 

 

 

9,495

(3)

 

 

 

2.64

 

 

 

3/28/2026

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

--

 

 

 

18,849

(4)

 

 

 

5.39

 

 

 

5/6/2027

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

15,458

 

 

 

70,643

(5)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12,782

 

 

 

58,414

(6)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Fluegge

 

 

15,073

 

 

 

--

 

 

 

 

12.97

 

 

 

3/21/2021

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

15,732

 

 

 

--

 

 

 

 

11.65

 

 

 

3/17/2022

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

20,624

 

 

 

--

 

 

 

 

6.85

 

 

 

3/15/2023

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10,000

 

 

 

--

 

 

 

 

6.55

 

 

 

5/25/2023

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5,310

 

 

 

5,311

(1)

 

 

 

4.40

 

 

 

3/31/2024

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5,470

 

 

 

10,940

(2)

 

 

 

3.61

 

 

 

3/9/2025

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2,188

 

 

 

6,564

(3)

 

 

 

2.64

 

 

 

3/28/2026

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

--

 

 

 

12,782

(4)

 

 

 

5.39

 

 

 

5/6/2027

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10,686

 

 

 

48,835

(5)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8,668

 

 

 

36,613

(6)

 

 

 

 

 

 

 

 

 

 

(1)          Vesting one-fourth on each of March 31, 2018, 2019, 2020 and 2021.

 

168 

 

 

(2)          Vesting one-fourth on each of March 9, 2019, 2020, 2021 and 2022.

 

(3)          Vesting one-fourth on each of March 28, 2020, 2021, 2022 and 2023.

 

(4)          Vesting one-fourth on each of May 6, 2021, 2022, 2023 and 2024.

 

(5)          Vesting one-third on each of March 28, 2020, 2021 and 2022.

 

(6)          Vesting one-third on each of May 6, 2021, 2022 and 2023.

 

(7)          Vesting one-fourth immediately and on each of November 24, 2021, 2022, and 2023.

 

(8)          Vesting one-third on each of November 24, 2021, 2022 and 2023.

 

2020 Options Exercised and Stock Vested

 

The following table shows the stock awards and restricted stock grants that vested during 2020 for the CSI named executive officers. No options were exercised by the CSI named executive officers in 2020.

 

 

 

Stock Awards

 

Name

 

Number of Shares Acquired on
Vesting (#)

 

 

Value Realized on Vesting
($)

 

 

 

 

 

 

 

 

 

 

Mr. Lacey

 

 

16,091

 

 

 

89,034

 

 

 

 

 

 

 

 

 

 

Ms. Kumar

 

 

3,248

 

 

 

16,370

 

 

 

 

 

 

 

 

 

 

Mr. Fandrich

 

 

13,153

 

 

 

66,798

 

 

 

 

 

 

 

 

 

 

Scott Fluegge

 

 

9,414

 

 

 

48,093

 

 


Potential Payments Under Change Of Control

 

The Company has entered into Change of Control Agreements (“CIC Agreements”) with each CSI Named Executive Officer. CIC Agreements provide for payment of severance compensation if (A) there is a change in control of the Company and (B) within 24 months following this change of control, there is either (i) an involuntary termination of employment other than for cause, death, disability or retirement or (ii) a voluntary termination of employment for Good Reason (each a “Triggering Event”). Under the CIC Agreements, “Good Reason” includes a material diminution in the person’s base salary, duties or authority, or those of his immediate superior, or a material diminution in the budget over which the person has authority or a change in geographic location of the person’s job. The CIC Agreements include provisions requiring each executive to maintain confidentiality of information acquired during the period of employment, to refrain for a period of one year from competing with the Company or soliciting other Company employees to leave their employment with the Company and to provide a release of all claims against the Company in exchange for the benefit paid pursuant to the CIC agreement. In the event of a change in control, CSI’s LTI Plan provides for partial vesting and payment of unvested Incentive Awards and CSI’s Stock Option Plan provides for vesting of unvested stock options, in each case irrespective of whether or not a Triggering Event has occurred.

 

Assuming a change of control occurred on January 1, 2020, the following table presents amounts potentially payable to each of the CSI named executive officers, without and with a corresponding Triggering Event.

 

Name

 

Reason for Payment

 

Cash
Severance
($) (1)

 

 

Partial
Vesting of
Incentive
Awards ($) (2)

 

 

Vesting of
Unvested
Options (3)

 

 

Total ($)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Lacey

 

Change of Control without a Triggering Event

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Change of Control with Triggering Event

 

 

350,301

 

 

 

203,214

 

 

 

184,438

 

 

 

737,953

 

 

 

169 

 

 

Name

 

Reason for Payment

 

Cash Severance ($)(1)

 

Partial
Vesting of
Incentive
Awards ($)
(2)

 

Vesting of Unvested Options(3)

 

Total ($)

 

 

Mr. Lacey

 

Change of Control without a Triggering Event

 

 

 

 

 

 

 

Change of Control with Triggering Event

 

350,301

 

203,214

 

184,438

 

737,953

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Kumar

 

Change of Control without a Triggering Event

 

 

 

 

 

 

 

Change of Control with Triggering Event

 

329,769

 

79,308

 

3,000

 

412,077

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Fandrich

 

Change of Control without a Triggering Event

 

 

 

 

 

 

 

Change of Control with Triggering Event

 

593,015

 

153,844

 

55,801

 

802,660

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Fluegge

 

Change of Control without a Triggering Event

 

 

 

 

 

 

 

Change of Control with Triggering Event

 

262,362

 

107,052

 

34,451

 

403,865

(1)          The amounts in this column reflect the amount of cash severance the Company would be obligated to pay these individuals in the form of a single lump-sum cash payment pursuant to their CIC Agreements.

(2)          The amounts in this column reflect the estimated value of unvested Incentive Awards under CSI’s LTI Plan at December 31, 2020 that would become payable upon the occurrence of a change in control.

(3)          The amount in this column represents in-the-money value of options assuming vesting upon a change in control at January 1, 2021. As of the immediately preceding business day, the exercise price of unvested options granted to these CSI NEOs was greater than the closing market price of the CSI common stock.

Director Compensation

The 2020 compensation of CSI non-employee directors was as follows: (i) each director was paid an annual cash retainer of $20,000; (ii) each director was granted options to purchase 10,000 shares of common stock; (iii) the two committee chairs were each paid an additional $7,500 in cash; (iv) each non-chair committee member was paid an additional $5,000 in cash; (v) the non-executive CSI board chair was paid an additional $20,000 in cash; and (vi) Mr. Primuth, who in addition to his other director responsibilities, served as CSI board secretary until April 2020, was paid an additional $8,750 in cash.

The following table presents the 2020 cash and dollar value of stock options paid to each CSI non-employee board member. Curtis A. Sampson retired as a director at the 2020 annual meeting of shareholders in June 2020 and Michael Zapata was elected as a director on that date.

Name (1)

 

Fees Earned or
Paid in Cash ($)

 

 

Options Awards
($)
(2)

 

 

Total ($)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Curtis A. Sampson

 

 

10,000

 

 

 

--

 

 

 

10,000

 

Richard A. Primuth

 

 

39,167

 

 

 

15,946

 

 

 

55,113

 

Randall D. Sampson

 

 

32,500

 

 

 

15,946

 

 

 

48,446

 

Steven C. Webster

 

 

30,000

 

 

 

15,946

 

 

 

45,946

 

Michael Zapata

 

 

12,500

 

 

 

15,946

 

 

 

28,446

 

 

(1)          In addition to compensation as directors, the named directors serve in differing roles for which they receive separate compensation, including as a committee chair, committee member, and board secretary, as described above.

(2)          Values expressed represent the aggregate grant date fair value computed in accordance with FASB ASC Topic 718 and Item 402(r)(2)(iv) of Regulation S-K, using the assumptions discussed within Note 11 in the notes to the CSI consolidated financial statements included in this proxy statement/prospectus.

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CSI MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

You should read the following discussion and analysis of CSI’s financial condition and results of operations together with CSI’s financial statements and related notes appearing elsewhere in this proxy statement/prospectus. This discussion and analysis contains forward-looking statements based upon current expectations that involve risks and uncertainties. CSI’s actual results may differ materially from those anticipated in these forward-looking statements as a result of various factors, including those discussed in the section entitled “RISK FACTORS” and in other sections of this proxy statement/prospectus. Please also see the section entitled “CAUTION CONCERNING FORWARD-LOOKING STATEMENTS.

Comparison of Six Months Ended June 30, 2021 and 2020

Results of Operations

CSI’s consolidated sales increased 14.2% in the second quarter of 2021 to $10,997,000 compared to $9,628,000 in the same period of 2020. CSI’s consolidated operating loss from continuing operations in the second quarter of 2021 increased slightly to $1,661,000 from an operating loss from continuing operations of $1,646,000 in the second quarter of 2020. CSI’s net loss from continuing operations in the second quarter of 2021 was $1,939,000 or $ (0.20) per share compared to net loss from continuing operations of $1,367,000 or $ (0.15) per share in the second quarter of 2020.

On August 2, 2021, CSI and Lantronix, Inc. closed the E&S Sale Transaction and, as a result, CSI disposed of its E&S Segment business as of that date. The financial statements, notes to financial statements, and this comparison of the six months ended June 30, 2021 and 2020 in this CSI Management’s Discussion and Analysis of Financial Condition and Results of Operations are based on CSI’s financial operations in the 2021 second quarter and except as expressly forth below, do not reflect the effect of the closing of the E&S Sale Transaction.

Electronics & Software (E&S) Segment Results

E&S Segment sales increased 12% to $9,307,000 in the second quarter of 2021 compared to $8,287,000 in 2020. The E&S Segment organizes its sales force by vertical markets and segments its customers geographically. Second quarter E&S Segment sales by region are presented in the following table:

 

E&S Segment Sales by Region

 

 

2021

 

 

2020

North America

$

 7,721,000

 

$

 6,898,000

International

 

 1,586,000

 

 

 1,389,000

 

$

 9,307,000

 

$

 8,287,000

 

The following table summarizes the 2021 and 2020 second quarter E&S Segment sales by its major product groups:

 

E&S Segment Sales by Product Group

 

 

2021

 

 

2020

Intelligent edge solutions

$

 3,779,000

 

$

 3,023,000

Traditional products

 

 5,528,000

 

 

 5,264,000

 

$

 9,307,000

 

$

 8,287,000

 

E&S Segment sales in North America increased $823,000, or 12%, primarily due to increased demand in our Intelligent edge solutions (“IES”) products and reduced impact from the COVID-19 pandemic, partially offset by continued supply chain constraints. E&S Segment international sales increased $197,000, or 14%, primarily due to growth in the Asia Pacific region of sales of our traditional products. E&S Segment sales of IES products increased 25% or $756,000 due to an uptick in our core IES media converter products by Federal agencies and an uptick in our

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Switch products used in security and surveillance applications. E&S Segment traditional product sales increased 5% or $264,000 due to prior year delayed project spending by customers due to the COVID-19 pandemic.

E&S Segment gross profit on second quarter sales increased to $4,103,000 in 2021 from $3,095,000 in 2020. E&S Segment gross margin increased to 44.1% in the second quarter of 2021 from 37.3% in 2020 primarily due to favorable product mix including some higher margin sales on IES products and leveraging our fixed operating costs on higher sales volume. E&S Segment selling, general and administrative expenses decreased 1% to $3,592,000, or 38.6% of sales, in the second quarter of 2021 compared to $3,638,000, or 43.9% of sales, in the second quarter of 2020 due to reduced personnel expenses.

The E&S Segment reported operating income of $511,000 in the second quarter of 2021 compared to an operating loss of $543,000 in 2020, primarily due to higher sales and gross margin.

Services & Support (S&S) Segment Results

S&S Segment sales increased 20% to $1,833,000 in the second quarter of 2021 compared to $1,525,000 in the second quarter of 2020.

S&S Segment revenues by customer group were as follows:

 

S&S Segment Revenue
by Customer Group

 

 

2021

 

 

2020

Financial

$

 399,000

 

$

 103,000

Healthcare

 

 245,000

 

 

 240,000

Education

 

 85,000

 

 

 626,000

Other commercial clients

 

 960,000

 

 

 371,000

CSI IT operations

 

 144,000

 

 

 185,000

 

$

 1,833,000

 

$

 1,525,000

S&S Segment revenues by revenue type were as follows:

 

S&S Segment Revenue by Type

 

 

2021

 

 

2020

Project & product revenue

$

 245,000

 

$

 746,000

Services & support revenue

 

 1,588,000

 

 

 779,000

 

$

 1,833,000

 

$

 1,525,000

 

S&S Segment revenues from the education sector decreased $541,000 or 86% in the second quarter of 2021 as compared to the 2020 second quarter due to the substantial completion of projects from the Company’s Florida school district customer. CSI was not selected as the primary vendor on the next multi-year project for this school district, but has been selected as the secondary vendor for structured cabling and enterprise networking.

S&S Segment revenue from sales to small- and mid-size businesses (SMBs), which are primarily financial, healthcare and commercial clients increased $890,000 or 125% in the second quarter of 2021 as compared to the second quarter of 2020 due to the acquisition of Ecessa on May 14, 2020 and the acquisition of the assets of IVDesk on November 3, 2020. S&S Segment project and product revenue decreased $501,000 or 67% in the second quarter of 2021 as compared to the second quarter of 2020 due primarily to the decrease in the education sector. S&S Segment services and support revenue increased $809,000 or 104% as compared to the same quarter of the prior year due to CSI’s acquisition of Ecessa and its service and support revenue on its SD-WAN products as well as the acquisition of IVDesk, which contributed $616,000 in revenue during the quarter. Overall, Ecessa contributed $517,000 in revenue during the second quarter of 2021, an increase of $252,000 over the second quarter of the prior year.

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S&S Segment gross profit increased 19% to $648,000 in the second quarter of 2021 compared to $543,000 in the same period in 2020. S&S Segment gross margin was in line with prior year with 35.4% in the second quarter of 2021 compared to 35.6% in in the second quarter of 2020.  S&S Segment selling, general and administrative expenses increased 82% in the second quarter of 2021 to $878,000, or 47.9% of sales, compared to $483,000, or 31.7% of sales, in the second quarter of 2020 due to the May 2020 acquisition of Ecessa and the November 2020 acquisition of IVDesk, the inclusion of its general and administrative costs that are not included in the prior year, including $110,000 of amortization expense.

 

The S&S Segment reported an operating loss of $230,000 in the second quarter of 2021 compared to operating income of $60,000 in the same period of 2020, primarily due to increased selling, general and administrative expenses, including amortization expense.

Other

“Other” includes non-allocated corporate overhead costs that are not considered discontinued operations. Other corporate costs increased by $1,764,000 due to outside legal and financial consulting costs related to the Pineapple Merger Transaction and the E&S Sale Transaction.

With the August 2, 2021 closing of the E&S Sale Transaction, the E&S Segment operations will be treated as “Discontinued Operations” in CSI’s 2021 third quarter financial results and CSI will no longer be allocating a portion of its general and administrative expenses to this segment. Therefore, CSI expects its non-allocated general and administrative expenses, which are separately accounted for as “Other,” to increase in the second half of 2021.

Income Taxes

CSI’s loss from continuing operations before income taxes was $4,100,000 in the first six months of 2021 compared to a loss from continuing operations before income taxes of $2,180,000 in the first six months of 2020. CSI’s effective income tax rate was (0.0%) in the first six months of 2021 and 0.2% in 2020. This effective tax rate for 2021 differs from the federal tax rate of 21% due to state income taxes, foreign tax rate differences, foreign losses not deductible for U.S. income tax purposes, the effect of uncertain income tax positions, stock compensation windfalls and changes in valuation allowances related to deferred tax assets. As of December 31, 2020, CSI had a federal net operating loss carryforward from 2015 through 2020 activity of approximately $10,940,000 that is available to offset future taxable income and begins to expire in 2035. CSI also has a federal capital loss carryforward from 2018 of approximately $1,930,000 that is available to offset future capital gains and expires in 2023.

Liquidity and Capital Resources

As of June 30, 2021, the Company had $21,112,000 in cash, cash equivalents, restricted cash, and liquid investments. Of this amount, $11,564,000 was invested in short-term money market funds that are not considered to be bank deposits and are not insured or guaranteed by the FDIC or other government agency. These money market funds seek to preserve the value of the investment at $1.00 per share; however, it is possible to lose money investing in these funds. The remainder in cash and cash equivalents is operating cash. The Company also had $6,228,000 in investments consisting of corporate notes and bonds that are traded on the open market and are classified as available-for-sale at June 30, 2021.

The Company had working capital of $26,587,000 at June 30, 2021, consisting of current assets of approximately $34,126,000 and current liabilities of $7,539,000 compared to working capital of $28,320,000 at December 31, 2020 consisting of current assets of $35,758,000 and current liabilities of $7,438,000.

Cash flow provided by operating activities was approximately $293,000 in the first six months of 2021 as compared to $2,137,000 used in the same period of 2020. Significant working capital changes from December 31, 2020 to June 30, 2021 included a decrease in receivables and inventories of $1,423,000 and $765,000, respectively and an increase in payables of $1,239,000. 

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Net cash provided by investing activities was $2,136,000 in first six months of 2021 compared to $9,046,000 2020, due to lower proceeds from the maturity of investments and proceeds from the Suttle sale, included in discontinued operations in the prior year.

Net cash used in financing activities was $688,000 in the first six months of 2021 compared to $445,000 used in financing activities in 2020. The Company paid $550,000 in contingent consideration related to the November 2020 IVDesk acquisition. Cash dividends paid on common stock decreased to $11,000 in 2021 from $376,000 in 2020 ($0.04 per common share). Dividends paid in 2021 consisted only of accrued dividends that were paid on deferred stock or restricted stock units that vested and were issued in 2021. Proceeds from common stock issuances, principally issued under the Company’s Employee Stock Purchase Plan, totaled approximately $54,000 in 2021 and $50,000 in 2020. The Company acquired $180,000 and $55,000 in 2021 and 2020, respectively, of Company stock from employees to satisfy withholding tax obligations related to share-based compensation, pursuant to terms of Board and shareholder-approved compensation plans. The Company has not acquired Company stock during the first six months of 2021 under a $2,000,000 Stock Repurchase Program authorized by the Board of Directors in August 2019. At June 30, 2021, there remained $341,000 under the 2019 Stock Repurchase Program.

As a result of the August 2, 2021 closing of the E&S Sale Transaction, CSI expects its overall working capital needs to decrease. At June 30, 2021, the E&S Segment had (i) inventory of $7.8 million and accounts receivable of $6.3 million and (ii) current liabilities of $4.4 million. At closing, Lantronix purchased the then-current inventory and accounts receivable balances and assumed the then-current current liabilities’ balances. Although CSI will continue to have working capital needs to support the S&S Segment and other ongoing operations, unless its experiences significant growth in its S&S Segment operations, these requirements will be less than in the past.

In the opinion of management, based on the Company’s current financial and operating position and projected future expenditures, sufficient funds are available to meet the Company’s anticipated operating and capital expenditure needs.

Line of Credit

On August 28, 2020, CSI entered into a credit agreement with Wells Fargo Bank, National Association, establishing a $5.0 million line of credit facility that replaced a prior facility. On October 29, 2020, the Company entered into a First Amendment to the credit agreement.  Under the credit agreement, as amended, CSI has the ability to obtain one or more letters of credit in an aggregate amount up to $2.0 million, subject to the general terms of the credit agreement.

CSI had no outstanding borrowings against the line of credit, or the prior facility, at June 30, 2021 and $2,101,000 was available for use. Due to the revolving nature of loans under this credit facility, additional borrowings and periodic repayments and re-borrowings may be made until the maturity date. Interest on borrowings on the credit line is at LIBOR plus 1.25%, with a minimum LIBOR rate of 0.75% (2.0% at June 30, 2021). By its terms, the credit agreement was scheduled to expire on August 28, 2021 and was secured by government securities owned and pledged by CSI. CSI did not plan to renew the credit agreement upon its expiration and terminated the credit agreement effective August 13, 2021.

Critical Accounting Policies

CSI’s critical accounting policies, including the assumptions and judgments underlying them, are discussed in Note 1 of the notes to the consolidated financial statements of CSI included in this proxy statement/prospectus. There were no other significant changes to our critical accounting policies during the six months ended June 30, 2021.

The Company’s accounting policies have been consistently applied in all material respects and disclose matters such as allowance for doubtful accounts, sales returns, inventory valuation, warranty expense, income taxes, revenue recognition, asset impairment recognition, and foreign currency translation. On an ongoing basis, we evaluate our estimates based on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, the result of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Results may differ from these estimates due to actual outcomes being different from those on which we based our assumptions. Management reviews these estimates and judgments on an ongoing basis.

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Recently Issued Accounting Pronouncements

Recently issued accounting standards and their estimated effect on CSI’s condensed consolidated financial statements are also described in Note 15, Recent Accounting Pronouncements, to CSI’s condensed consolidated unaudited financial statements as of and for the six months ended June 30, 2021 included in this proxy statement/prospectus.

Comparison of Year Ended December 31, 2020 and 2019

Results of Operations

CSI’s consolidated sales were $42,576,000 in 2020, a 16% decrease from sales of $50,906,000 in 2019. CSI’s consolidated net loss from continuing operations in 2020 was $1,796,000, or ($0.19) per share compared to net income of $251,000 or $0.03 per share in 2019.

 Electronics & Software (E&S) Segment Results

In 2020, 86% of E&S Segment revenue came from North America. E&S Segment sales decreased 27% to $34,496,000 in 2020 compared to $47,007,000 in 2019. The E&S Segment organizes its sales force by vertical markets and segments its customers geographically. E&S Segment sales by region in 2020 and 2019 were:

  

 

Electronics & Software Segment
Sales by Region

 

 

 

2020

 

 

2019

 

North America

 

$

29,721,000

 

 

$

39,771,000

 

International

 

 

4,775,000

 

 

 

7,236,000

 

 

 

$

34,496,000

 

 

$

47,007,000

 

 

The following table summarizes the E&S Segment’s 2020 and 2019 sales by product group:

  

 

Electronics & Software Segment
Sales by Product Group

 

 

 

2020

 

 

2019

 

Intelligent edge solutions

 

$

12,162,000

 

 

$

18,442,000

 

Traditional products

 

 

22,334,000

 

 

 

28,565,000

 

 

 

$

34,496,000

 

 

$

47,007,000

 

 

E&S Segment sales in North America decreased 25% or $10,050,000 in 2020 compared to 2019 primarily due to delayed project spending by customers due to the effect of the COVID-19 pandemic, $7,050,000 of sales for a major metropolitan smart city intelligent transportation IoT project recorded in the prior year, that did not reoccur in the current year, and a decline in sales to major Canadian telecommunications customer, partially offset by strong sales to Federal agencies. E&S Segment international sales decreased $2,461,000, or 34%, primarily due to the economic effects of the COVID-19 pandemic and an overall drop in demand for traditional products.

E&S Segment sales of intelligent edge solutions (“IES”) products decreased 34% or $6,280,000 due to $7,050,000 of deliveries in the prior year for a major metropolitan smart city intelligent transportation IoT project that did not reoccur in the current year, partially offset by higher sales of security and surveillance products and sales to Federal

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agencies. Excluding the prior year major metropolitan smart city intelligent transportation IOT project, sales of IES products increased by $770,000 or 7%. Traditional product sales decreased 22% or $6,231,000, due mainly to the overall economic effects of the COVID-19 pandemic and a decline in media converter orders from major telecommunications customers.

E&S Segment gross profit decreased 30% to $14,890,000 in 2020 compared to $21,394,000 in 2019. E&S Segment gross margin as a percentage of sales decreased to 43% in 2020 from 46% in 2019 primarily due to the volume and favorable margin impacts from the prior year major metropolitan smart city IoT project that did not reoccur in the current year, and increased sales of some IES products to Federal agencies at lower margins, partially offset by lower inventory write-downs year over year.

E&S Segment selling, general and administrative expenses decreased 20% to $13,875,000, or 40% of sales, in 2020 from $17,354,000, or 37% of sales in 2019 due to reduced travel, marketing and personnel expenses, in part due to steps taken by management in response to the COVID-19 pandemic.

The E&S Segment had operating income of $1,015,000 in 2020 compared to operating income of $4,040,000 in 2019, primarily due to lower sales and gross margin.

Services & Support (S&S) Segment Results

S&S Segment sales increased 85% to $8,777,000 in 2020 compared to $4,741,000 in 2019.

S&S Segment revenues by customer group were as follows:

 

 

Services & Support Segment
Revenue by Customer Group

 

 

 

2020

 

 

2019

 

Education

 

$

4,483,000

 

 

$

1,926,000

 

Healthcare

 

 

887,000

 

 

 

705,000

 

Financial and other commercial clients

 

 

2,708,000

 

 

 

1,268,000

 

CSI IT operations

 

 

699,000

 

 

 

842,000

 

 

 

$

8,777,000

 

 

$

4,741,000

 

 

S&S Segment revenues by revenue type were as follows:

  

 

Services & Support Segment
Revenue by Type

 

 

 

2020

 

 

2019

 

Project & product revenue

 

$

5,120,000

 

 

$

2,242,000

 

Services & support revenue

 

 

3,657,000

 

 

 

2,499,000

 

 

 

$

8,777,000

 

 

$

4,741,000

 

 

S&S Segment revenues from the education sector increased $2,557,000 or 133% in 2020 primarily due to the commencement of projects that had been previously delayed due to funding issues where the prior year had less project revenue in this sector. Projects for this education customer commenced at the end of the second quarter of

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2020. Although the education vertical remains an important element of the S&S Segment’s overall market strategy, much of S&S Segment’s historical revenue from the education sector has been derived from a school district in Florida. The Company has substantially completed its work on this project and was not selected as the primary vendor on the next multi-year project for this school district, but has been selected as the secondary vendor for structured cabling and enterprise networking.

S&S Segment revenue from small to medium businesses (“SMBs”), which are primarily healthcare, financial and commercial clients, increased by 82% or $1,622,000 due to the acquisition of Ecessa on May 14, 2020 and the acquisition of the assets of IVDesk on November 3, 2020. The decrease in the CSI IT operations revenue as compared to 2019 is related to hardware refresh revenue in the prior year that was not repeated in the current year. S&S Segment project and product revenue increased $2,878,000 or 128% during 2020 as compared to 2019 due primarily to the increase in the education sector. S&S Segment services and support revenue increased $1,158,000 or 46% as compared to the same quarter of the prior year due to the Company’s acquisition of Ecessa, which has service and support revenue on its SD-WAN products. Overall, Ecessa contributed $1,260,000 and IVDesk contributed $401,000 in revenue during the year.

S&S Segment gross profit increased 101% to $2,979,000 in 2020 compared to $1,482,000 in 2019. S&S Segment gross margin as a percentage of sales increased to 34% in 2020 compared to 31% in 2019 due to the increase in project revenue in the education sector, primarily within the second half.

S&S Segment selling, general and administrative expenses increased 80% in 2020 to $2,669,000, or 30% of sales, compared to $1,485,000 in 2019, or 31% of sales due to the May 2020 acquisition of Ecessa and the inclusion of its general and administrative costs that are not included in the prior year.

S&S Segment operating income was $310,000 in 2020 compared to an operating loss of $3,000 in 2019, primarily due to increased education revenue.

Other

As a result of our treatment of Suttle as discontinued operations, “Other” includes non-allocated corporate overhead costs as well as costs allocated to Suttle that are not considered discontinued operations. In the past, the Company would estimate annual revenue and headcount for each principal business unit and then allocate a portion of shared service corporate overhead costs based on these metrics. Because Suttle is now treated as discontinued operations, these costs are now included within “Other.”

Income Taxes

The Company’s loss from continuing operations before income taxes was $1,775,000 in 2020 compared to income before income taxes of $235,000 in 2019. The Company’s effective income tax rate was -1.1% in 2020 compared to -6.5% in 2019. The 2020 effective rate differed from the standard rate of 21% primarily due to the valuation allowances related to deferred tax assets, along with the impact of state income taxes, foreign tax rate differences, foreign losses not deductible for U.S. income tax purposes, and provisions for interest charges for uncertain income tax positions. As of December 31, 2020, the Company had a federal net operating loss carryforward from 2015 through 2020 activity of approximately $10,940,000 that is available to offset future taxable income and begins to expire in 2035. The Company also has a federal capital loss carryforward from 2018 of approximately $1,930,000 that is available to offset future capital gains and expires in 2023. See Note 13 for a reconciliation of the standard tax rate to the Company’s effective tax rate for 2020 and 2019.

Effects of Inflation

Inflation has not had a significant effect on operations in recent years. The Company does not have long-term production or procurement contracts and has historically been able to adjust pricing and purchasing decisions to respond to inflationary pressures.

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Liquidity and Capital Resources

As of December 31, 2020, the Company had approximately $21,457,000 in cash, cash equivalents and liquid investments, compared to $24,057,000 at December 31, 2019. Of this amount, $9,424,000 was invested in short-term money market funds that are not considered to be bank deposits and are not insured or guaranteed by the FDIC or other government agency. These money market funds seek to preserve the value of the investment at $1.00 per share; however, it is possible to lose money investing in these funds. The remainder in cash and cash equivalents is operating cash. The Company also had $8,364,000 in investments consisting of commercial paper and corporate notes and bonds that are traded on the open market and are classified as available-for-sale at December 31, 2020.

The Company had working capital of $28,320,000, consisting of current assets of approximately $35,758,000 and current liabilities of $7,438,000 at December 31, 2020 compared to working capital of $38,052,000, consisting of current assets of $49,402,000 and current liabilities of $11,350,000 at the end of 2019.

Cash flow used in operating activities was approximately $4,684,000 in 2020 compared to $10,231,000 provided in 2019. Significant working capital changes from 2019 to 2020 included a $1.4 million decrease in accounts payable and $1.5 million used in discontinued operations.

Cash provided by investing activities was $3,930,000 in 2020 compared to $5,222,000 used in 2019.

Net cash used by financing activities was $800,000 in 2020 compared to $1,450,000 in 2019. Cash dividends paid on common stock decreased to $564,000 in 2020 ($0.06 per common share) from $743,000 in 2019 ($0.08 per common share). Proceeds from common stock issuances, principally shares sold to the Company’s Employee Stock Ownership Plan and issued under the Company’s Employee Stock Purchase Plan, totaled approximately $119,000 in 2020 and $715,000 in 2019. The Company acquired $71,000 and $2,000 in 2020 and 2019, respectively, of Company stock from employees to satisfy withholding tax obligations related to share-based compensation, pursuant to terms of Board and shareholder-approved compensation plans. The Company also acquired $284,000 of Company stock under a $2,000,000 Stock Repurchase Program authorized by the Board of Directors in August 2019. At December 31, 2020, there remained $341,000 under the 2019 Stock Repurchase Program.

Line of Credit

On August 28, 2020, the Company entered into a Credit Agreement with Wells Fargo Bank, National Association, establishing a $5,000,000 line of credit facility that replaced a prior facility. On October 29, 2020, the Company entered into a First Amendment to the Credit Agreement. Under the Credit Agreement, as amended, the Company has the ability to obtain one or more letters of credit in an aggregate amount up to $2.0 million, subject to the general terms of the Credit Agreement.

The Company had no outstanding borrowings against this line of credit, or the prior facility, at December 31, 2020 and 2019, and $1,051,000 was available for use as of December 31, 2020. Interest on borrowings on the credit line is at LIBOR plus 1.25%, with a minimum LIBOR rate of 0.75% (2.0% at December 31, 2020). The credit agreement expires August 28, 2021 and is secured by government securities owned and pledged by the Company.

In connection with the Company’s November 3, 2020 purchase of the operating assets of privately held IVDesk from a third-party Receiver, the Company provided the Receiver as seller a $550,000 letter of credit to secure the Company’s obligation to pay the earn-out under the asset purchase agreement. The letter of credit was issued pursuant to the line of credit with Wells Fargo. In March 2021, the Company paid the $550,000 balance and the letter of credit was cancelled.

In the opinion of management, based on the Company’s current financial and operating position and projected future expenditures, sufficient funds are available to meet the Company’s anticipated operating and capital expenditure needs.

Contractual Obligation Summary

The following table summarizes our contractual obligations at December 31, 2020 and the effect these obligations are expected to have on CSI’s liquidity and cash flow in future periods:

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Less than

 

 

 

 

 

 

 

 

More Than

 

 

 

One Year

 

 

1 – 3 Years

 

 

3 – 5 Years

 

 

5 Years

 

Operating leases

 

$

225,000

 

 

$

199,000

 

 

$

4,000

 

 

$

 

Total

 

$

225,000

 

 

$

199,000

 

 

$

4,000

 

 

$

 

  

As of December 31, 2020, the Company had no other material commitments (either cancelable or non-cancelable) for capital expenditures, short or long-term debt, capital leases or other purchase commitments related to ongoing operations.

New Accounting Pronouncements

See Note 1 of the notes to the consolidated financial statements of CSI included in this proxy statement/prospectus for a discussion of new accounting standards applicable to CSI for 2020.

Off Balance Sheet Arrangements

None.

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INFORMATION ABOUT PINEAPPLE

For purposes of this section only, “Pineapple,” “we,” “us” or “our” refer to Pineapple Energy, LLC, on a combined basis with Hawaii Energy Connection and E-Gear, LLC, unless the context otherwise requires.

Overview of Pineapple’s Business

Our mission is to be the trusted energy partner to the consumer. Pineapple Energy provides households with sustainable solar energy, back-up power and security, control and predictability, and cost savings.  Because we believe the fragmented solar market is ripe for consolidation and provides an excellent opportunity for growth, we seek to acquire companies that deliver advanced home energy solutions and have brands with significant recognition in their respective marketplaces. We launched our business in late 2020 with the acquisition of certain assets of Sungevity, a residential solar brand with national brand recognition. Sungevity has provided us with well-known brand name and access to a database with both historical existing buyers and 115,000 unconverted leads, dating back to January 2019. On March 1, 2021, Pineapple signed a definitive agreement to acquire two leading sustainable energy service and technology providers in Hawaii: Hawaii Energy Connection (“HEC”) and E-Gear, LLC (“E-Gear”). These acquisitions are anticipated to close immediately prior to the closing of the Pineapple Merger Transaction. HEC is a leading sustainable energy provider, with over 9,000 residential systems installed and growing. E-Gear operates as a technology developer and manufacturer of energy management software and hardware in Hawaii. The HEC and E-Gear acquisitions are intended to establish our presence in the United States’ most solar-friendly region, as approximately 30% of Hawaiian homes are powered by solar. To drive our growth, we are actively looking for additional brands to add to our portfolio.

Our systems provide our primary customers, residential homeowners, with clean solar energy, typically at a savings compared to traditional utility energy. We provide a full range of installation services, including the design, engineering, procurement, permitting, construction, grid connection, warranty, monitoring and maintenance of residential solar energy systems. We also offer battery storage to customers in select markets and serve a limited number of enterprise customers. We believe our technology optimizes solar generation and storage in relation to load, grid condition, tariff, and customer desires, enabling us to maximize customer retention and sell them additional products. We believe our customer satisfaction drives a significant referral rate to prospective new customers.

We plan to drive substantial growth by continuing to grow our brand portfolio through further acquisitions. We currently have several targets on which we are conducting due diligence. We generally target solar contractors and sales and installation companies, and technology companies serving the alternative energy sector. We believe additional acquisitions will help us to expand our regional reach and achieve substantial economies of scale.

Our Market Opportunity

The residential solar sales and installation market is estimated to be over $5 billion in the United States alone. In 2021, Wood Mackenzie and SEIA estimated mid-teen-percentage industry growth for each of the next three years. With only 3% of United States homes running on residential solar power, and certain regions, such as Hawaii and Australia, having ten times this penetration, we believe there is a significant opportunity for growth, especially given the push to decarbonize the U.S. economy to reduce air pollution and minimize the negative impact of climate change. Further, the residential solar market provides customers with compelling cost savings as compared to most electric utilities, with customers who switch to solar typically saving from 10-50% a month as compared to comparable electric utility providers, depending on the region. Additionally, as utility prices continue to increase and the price of solar equipment decreases, we believe the residential solar return on investment will continue to improve. Further, the ongoing trend of increasing credit availability and decreasing interest rates on solar loans will provide access to an expanding customer base that could not previously benefit from solar or found the cost-benefit ratio not great enough.

Residential solar offers the largest near-term market opportunity to capture adjacent revenue opportunities, such as battery storage, integration with electric vehicle charging, controlling HVAC and lighting, powering home security systems, controlling household energy use, and improving the efficiency of common household appliances. We believe that the total addressable market for adjacent energy services is approximately $26.5 billion. We believe that we can penetrate this market with our portfolio of product offerings for residential solar customers. When

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paired with solar, battery storage is proving to be a significant source of incremental income for us. We believe the battery storage opportunity is growing due to an increasingly unreliable grid, as demonstrated by rolling blackouts and proactive shut-downs in California, prolonged grid outages in Texas caused by extreme winter weather, and other severe storms that occur nationwide. We train our salespeople to focus on this opportunity and are frequently more successful than other solar originators who we believe are failing to fully capture this sales opportunity.

Our Strategy

Our strategy is designed to provide customers with sustainable energy security by leveraging our people, technology, and processes to deliver solutions that improve the performance, increase the reliability, and reduce the cost of energy. Key elements of our strategy include:

 

Capitalizing on the opportunity for industry and regional consolidation. Residential solar is a fragmented industry, with over 4,000 contractors nationwide. However, we believe the Sunrun-Vivint merger in 2020 started the era of consolidation and the positive impact of scale-expansion. We believe there is a tremendous opportunity for a consolidator to rapidly scale its business and become one of the most recognized brands in the industry through acquiring, integrating, and growing leading local and regional solar sales and installation companies.

 

Leverage and continue to lower our customer acquisition cost through our digital platform and referral program. We already have what we believe are premier referral rates, with over 50% of HEC’s sales in Hawaii stemming from customer referrals, and one in every three Sungevity customers historically providing us with a referral. We believe that these two portfolio companies form a foundation to drive improved referral performance across the network of companies we acquire, further increasing our referral rates and lowering our customer acquisition cost.

 

Leverage our expertise in battery storage and grid services in Hawaii as state policies nationwide move towards replicating Hawaii. Hawaii is the most advanced residential solar, battery storage, and home energy management market in the U.S. With 15 years of operations and approximately 9,000 residential solar systems installed, HEC is a market leader with one of the most-recognized brands. As a result of our position and experience in the Hawaiian market, we have a thorough understanding of the Hawaiian solar regulatory regime, which we believe will be a competitive advantage as state policies nationwide replicate the solar policies that Hawaii has implemented.

 

Continue to grow our operations to achieve economies of scale. Residential solar is like many industries in that cost-of-goods-sold is a significant expense, and companies with greater scale can enjoy significantly lower costs throughout their equipment supply chain. As we grow both organically and through acquisitions, we expect to lower the costs of acquiring modules, inverters, and electrical balance-of-systems components, which we anticipate should allow us to accelerate growth through lower pricing and enhanced profit margins. With scalable administrative and operational infrastructure, we believe our current approach of organic growth enhanced by acquisitions will lead to profitability and cash generation. We anticipate taking advantage of the growth in the solar market as well as gaining market share relative to competitors. We also plan to benefit from economies of scale related to customer financing, since we can secure better loan and lease terms for our customers through our national solar finance partners.

 

Explore potential opportunities outside of solar to become a one-stop shop for consumers’ home and energy needs. We can eventually cross-sell into the energy storage, smart appliance, energy management software, comfort and lighting and security markets. These smart home products can be integrated into our residential solar product, and our ability to collaborate with providers of such products in the future may present us with a significant source of additional revenue.

 

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Our Strengths

We believe that the following strengths of our business position us to capitalize on the growing residential solar market, reinforce our position in the marketplace, and distinguish us from our competitors.

 

Strong history and proven lead generation process position us for organic growth. We have a history of delivering exceptional customer experiences, which has led to us driving high customer referral rates. As we grow our digital lead management platform, we expect these referral rates to improve. Further, we acquired over 115,000 unconverted Sungevity leads dating back to January 2019, which we believe will serve as a strong foundation as we ramp inside sales activities and simultaneously ramp new lead generation from our website and digital marketing efforts. We believe we are in an ideal position to approach these leads as the push progresses to minimize the negative impacts of climate change and air pollution. Furthermore, the easing of COVID-19 restrictions makes it easier for us to approach and install residential solar clients.

 

Recognized position in key solar market positions us well for expansion and provides us with penetration opportunities in multiple regions throughout the U.S. We have a significant number of residential solar systems installed in Hawaii, the leading U.S. state as measured by the percentage of solar systems installed, and one of the most influential states in the U.S. from a solar public policy perspective.

 

Positioned to leverage customer sentiment and public policy momentum.  The U.S. is rapidly moving to decarbonize its economy to reduce air pollution and minimize the negative impact of climate change. A key element of decarbonizing the economy is transitioning electricity from fossil fuels to renewable energy. Solar energy has become one of the lowest cost, most reliable and most flexible forms of energy generation and is becoming a preferred option for electricity generation worldwide.

 

A leading vendor for cutting edge product offerings. We are a leading vendor for cutting-edge product offerings from Enphase, Generac and other large solar product providers. As an experienced operator in the residential solar industry, we have built relationships with these large solar product providers that we believe provide us with a competitive advantage over newer entrants to the industry.

 

Seasoned and experienced management team.  We have a strong leadership team, with over 20 years of collective industry experience. Our founder and chief executive officer previously led various marketing, digital, product, and customer experience functions at the two largest US residential solar companies, and our senior executive in charge of products and technology has more than a decade of experience in residential solar development, manufacturing, and sales.

 

Our Products and Services

The primary product we offer to customers is a photovoltaic solar energy system, which is almost always installed on their roof, although can at times be ground mounted. Solar panels, also called modules, generate direct-current electricity when they are struck by sunlight. This direct current is sent to an inverter, which converts the DC electricity into alternating-current (“AC”) electricity, which is the type of electricity that is needed to provide power to outlets and run home appliances and equipment The AC flows from the inverter to the home’s main electrical panel, where it is then used to supply the home’s current power needs. If there is a shortfall, the home draws the remainder needed from the traditional utility connection, often referred to as the “grid”. If the home system has excess production, the surplus is usually exported back to the grid. Residential solar systems typically provide cost savings to customers because the system’s roof-panels generate power from the sun instead of customer’s needing to purchase power from the utility. In addition, customers generally receive tax incentives and credits for the excess generation provided back to the utility.

Battery storage is an increasingly important piece of our offering. Lithium-ion batteries store excess solar generated electricity on the residential premises, as opposed to sending it back to the grid. This can generate economic benefits in markets with utility time-of-use (“TOU”) rates, whereby a homeowner is compensated at a low rate during the day for sending solar to the grid but would be charged a high rate in the evening for drawing electricity from the

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grid. In TOU markets, customers can store their excess power during the day and then utilize the stored power at night, thus saving money. An equally important benefit of pairing a battery with solar is that a battery will keep powering a customer’s home during a grid outage. A solar system alone will not continue providing a home with electricity if the grid is down as the utility company establishes automatic disconnects to ensure that no live current is sent back into the grid for safety reasons. When a battery is added, the system can automatically and nearly-instantaneously become a self-contained micro-grid during an outage. The home can continue utilizing the electricity generated by the panels, as well as electricity stored in the battery when the sun is not shining. In addition, the excess production from the panels during the day can be used to recharge a battery that was depleted overnight.

In the Hawaiian market we also offer energy management control devices on solar systems that are paired with batteries. This is an emerging part of the business, but soon we believe we will be able to help homeowners generate ongoing revenue streams by aggregating their batteries into a fleet, thus creating a “virtual power plant” and selling grid services to the utility. We have proprietary technology in this area, strong relationships with regulators and utilities, and are participating in ongoing requests for proposals around this opportunity.

Competition

In the solar installation market, we compete with companies that offer products like ours. Some of these companies have greater financial resources, operational experience, and technical capabilities than we do. When bidding for solar installation projects, however, our current experience suggests that there is no clear dominant or preferred competitor in the markets in which we compete. We do not believe that any competitor has more than 25% of market share in the regions in which we operate. We compete with other solar installers on pricing, service, warranty, and the ability to arrange financing.  We also compete, on a cost basis, with traditional utilities that supply electricity to our potential customers and with companies that are not regulated like traditional utilities but that have access to the traditional utility electricity transmission and distribution infrastructure pursuant to state and local pro-competitive and consumer choice policies. Our advantage over traditional utilities is that we offer customers the opportunity to create their own electricity and reduce dependency on the traditional electrical grid.  We compete with these traditional utilities primarily based on price (cents per kilowatt hour), predictability of future prices (by providing pre-determined annual price escalations), the backup power capabilities of our battery storage solution and the ease by which customers can switch to electricity generated by our solar energy systems.

We believe we are a strong competitor, but the marketplace is comprised of many companies. There are over 4,000 residential solar sales and installation companies in the United States, and most residential solar sales are competitive with customers receiving quotes from multiple companies.

We also compete with (i) companies that are not regulated like traditional utilities but that have access to the traditional utility electricity transmission and distribution infrastructure pursuant to state and local pro-competitive and consumer choice policies and (ii) with  solar companies with business models that are like ours. Some customers might choose to subscribe to a community solar project or renewable subscriber program with these companies or their utilities, instead of installing a solar energy system on their home, which could affect our sales. Additionally, some utilities offer generation portfolios that are increasingly renewable in nature. We believe that we compete favorably with these companies based on our unique multi-channel approach and differentiated customer experience.

We also face competition from: purely finance-driven organizations that acquire customers and then subcontract out the installation of solar energy systems; from installation businesses that seek financing from external parties; from large construction companies and utilities; and from sophisticated electrical and roofing companies.

Intellectual Property

Generally, businesses in the solar installation industry are not dependent on intellectual property. As of June 30, 2021, we do not have any issued patents and have not filed any patent applications. We intend to file patent applications as we continue to innovate through our research and development efforts and will acquire patents upon the closing of our acquisition of HEC and E-Gear.

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Government Regulation

We are not regulated as a public utility in the United States under applicable national, state, or other local regulatory regimes where we conduct business. We compete primarily with regulated utilities. As a result, we have developed and are committed to maintaining a policy team to focus on the key regulatory and legislative issues impacting the entire industry. We believe these efforts help us better navigate local markets through relationships with key stakeholders and facilitate a deep understanding of the national and regional policy environment.

To operate our systems, we obtain interconnection permission from the applicable local primary electric utility. Depending on the size of the solar energy system and local law requirements, interconnection permission is provided by the local utility directly to us and/or our customers. In almost all cases, interconnection permissions are issued based on a standard process that has been pre-approved by the local public utility commission or other regulatory body with jurisdiction over net metering policies. As such, no additional regulatory approvals are required once interconnection permission is given.

Our operations are subject to stringent and complex federal, state, and local laws, including regulations governing the occupational health and safety of our employees and wage regulations. For example, we are subject to the requirements of the federal Occupational Safety and Health Act, as amended (“OSHA”), the U.S. Department of Transportation (“DOT”), and comparable state laws that protect and regulate employee health and safety. We endeavor to maintain compliance with applicable DOT, OSHA, and other comparable government regulations.

Government Incentives

Federal, state, and local government bodies provide incentives to owners, distributors, system integrators and manufacturers of solar energy systems to promote solar energy in the form of rebates, tax credits, payments for renewable energy credits associated with renewable energy generation and exclusion of solar energy systems from property tax assessments. These incentives help to catalyze customer acceptance of solar energy as an alternative to utility-provided power by lowering costs and increasing benefits, thus improving consumer ROI and/or decreasing payback periods. In addition, for some investors, the acceleration of depreciation creates a valuable tax benefit that reduces the overall cost of the solar energy system and increases the return on investment.

The federal government currently offers an investment tax credit (“Commercial ITC”) under Section 48(a) of the Internal Revenue Code of 1986, as amended (the “Code”), for the installation of certain solar power facilities owned for business purposes. If construction on the facility began before January 1, 2020, the amount of the Commercial ITC available is 30%, if construction began during 2020, 2021, or 2022 the amount of the Commercial ITC available is 26%, and if construction begins during 2023 the amount of the Commercial ITC available is 22%. The Commercial ITC steps down to 10% if construction of the facility begins after December 31, 2023, or if the facility is not placed in service before January 1, 2026. The depreciable basis of a solar facility is also reduced by 50% of the amount of any Commercial ITC claimed. The Internal Revenue Service (the “IRS”) provided taxpayers guidance in Notice 2018-59 for determining when construction has begun on a solar facility. This guidance is relevant for any facilities that we seek to deploy in future years but can take advantage of a higher tax credit rate available for an earlier year. For example, we have sought to capture the 30% Commercial ITC that was available prior to January 1, 2020, by incurring certain costs and taking title to equipment in 2019 or early 2020 and/or by performing physical work on components that will be installed in solar facilities. From and after 2023, we may seek to avail ourselves of the 26% credit rate by using these methods to establish the beginning of construction in 2020, 2021, or 2022. In future years, we may similarly utilize the program if the Commercial ITC step down continues.

More than half of the states, and many local jurisdictions, have established property tax incentives for renewable energy systems that include exemptions, exclusions, abatements, and credits. Many states have also adopted procurement requirements for renewable energy, and in 2018 the California Energy Commission and California Building Standards Commission approved a standard that beginning in 2020, newly constructed single-family and multifamily residences up to three stories tall must be solar-powered. Approximately thirty states and the District of Columbia have adopted a renewable portfolio standard (and eight other states have some voluntary goal) that requires regulated utilities to procure a specified percentage of total electricity delivered in the state from eligible renewable energy sources, such as solar energy systems, by a specified date. To prove compliance with such mandates, utilities must surrender solar renewable energy credits (“SRECs”) to the applicable authority. Solar energy system owners such as our investment funds often can sell SRECs to utilities directly or in SREC markets.

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While there are numerous federal, state, and local government incentives that benefit our business, some adverse interpretations or determinations of new and existing laws can have a negative impact on our business. 

Employees

As of June 30, 2021, Pineapple had 4 employees in the United States, of which 1 is an executive. Upon the closing of the Pineapple Merger Transaction, Pineapple will add employees from HEC and CSI. None of Pineapple’s employees, nor the employees of HEC and CSI, are represented by a labor union. 

Properties

Pineapple is currently utilizing another company’s office space for which it pays no fee. We expect to lease new space for our corporate headquarters in the upcoming 12 months.

Legal Proceedings

We may be subject to legal proceedings and claims in the ordinary course of business. We cannot predict the results of any such disputes, and despite the potential outcomes, the existence thereof may have an adverse material impact on us due to diversion of management time and attention as well as the financial costs related to resolving such disputes.

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PINEAPPLE EXECUTIVE COMPENSATION

This section discusses Pineapple’s executive compensation and compensation paid or potentially payable to Kyle Udseth, as he will be continuing as the chief executive officer of the combined company. No other Pineapple employees will be continuing as executive officers of the combined company.

Mr. Udseth was hired as Pineapple’s chief executive officer on February 10, 2021. As a result, Mr. Udseth did not receive any compensation from Pineapple in 2019 or 2020.

Employment Agreement

On February 10, 2021, Pineapple entered into an employment agreement with Kyle Udseth pursuant to which he was hired as Pineapple’s chief executive officer. Under the employment agreement, Mr. Udseth received a signing bonus of $65,000. Mr. Udseth’s annual base salary is $300,000, half of which is being paid to Mr. Udseth and half of which has been accruing. Upon the closing of the merger agreement, the portion of Mr. Udseth’s base salary that has been accrued will be paid to him, and going forward no portion of his salary will be accrued and instead will be paid in accordance with regular payroll practices. Mr. Udseth is eligible for annual discretionary bonuses in the amount of 50% of his annual salary, as determined by the board of Pineapple.

The initial term of Mr. Udseth’s employment agreement is for a two-year period from its effective date of February 10, 2021. On the second anniversary of the effective date, and on each succeeding one-year anniversary of such date, the term of the employment agreement will be automatically extended for successive one-year periods unless Pineapple or Mr. Udseth gives written notice of non-renewal to the other party at least ninety days prior to such date.

In the event Mr. Udseth’s employment is terminated by Pineapple without cause (as defined in the employment agreement), by Pineapple due to Mr. Udseth’s disability, or by Mr. Udseth for good reason (as defined in the employment agreement), subject to Mr. Udseth signing, and not rescinding, a release of claims and his continued compliance with restrictive covenants applicable to him, he will be paid severance in an amount equal to 50% of his annual base salary as of the date termination. Such amount will be payable to him in substantially equal installments during the period from his date of termination through, and up to, the six-month anniversary of the termination date. In the event Mr. Udseth’s employment is terminated by Pineapple for cause or by Mr. Udseth for any reason, other than good reason, he will only receive his earned but unpaid base salary through the date of termination.

Mr. Udseth’s employment agreement contains customary confidentiality provisions. The employment agreement also provides that, while Mr. Udseth is employed by us and for a period of 12 months thereafter, he will not (i) engage in competitive business, subject to certain exceptions; (ii) persuade or induce any supplier or vendor to terminate, reduce or change its supply of its good or service to Pineapple; (iii) interfere, or aid or induce any other person or entity in interfering, with the relationship between Pineapple and its vendors, joint venturers or licensors; or (iv) solicit, aid or induce any employee, representative or agent of Pineapple to leave such employment or retention or to accept employment with or render services to or with any other entity, or hire or retain any such employee, representative or agent, or take any action to materially assist or aid any such actions.

On             , 2021, the CSI compensation committee granted an inducement award of              restricted stock units (“RSUs”) to Mr. Udseth’s in connection with CSI’s offer to Mr. Udseth to become CSI’s Chief Executive Officer upon the closing of the merger and as a material inducements to Mr. Udseth to enter into employment with CSI upon the closing of the merger. The RSU award was granted in accordance with Nasdaq Listing Rule 5635(c)(4) and outside of the 2021 Equity Incentive Plan.

Non-Employee Manager Compensation

No members of Pineapple’s board of managers received any compensation during the year ended December 31, 2020 for their service as a member of the board of managers during such time period.

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PINEAPPLE MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

You should read the following discussion and analysis of Pineapple’s financial condition and results of operations together with Pineapple’s financial statements and related notes appearing elsewhere in this proxy statement/prospectus. This discussion and analysis contains forward-looking statements based upon current expectations that involve risks and uncertainties. Pineapple’s actual results may differ materially from those anticipated in these forward-looking statements as a result of various factors, including those discussed in the section entitled “RISK FACTORS” and in other sections of this proxy statement/prospectus. Please also see the section entitled “CAUTION CONCERNING FORWARD- LOOKING STATEMENTS.”

Overview

Pineapple Energy LLC is a Delaware limited liability company formed on December 1, 2020. Pineapple was founded to acquire and grow leading local and regional solar, storage, and energy services companies nationwide. Pineapple’s vision is to power the energy transition through grass-roots growth of solar electricity paired with battery storage on consumers’ homes. Pineapple puts the customer at the heart of everything it does, building long-term relationships to create and share in recurring revenue from the electric grid of the future. The acquisition of the Sungevity assets in December 2020 provides Pineapple access to Sungevity’s installed customer base consisting of 44,000+ solar customers across 12 states.

Key Developments

 

Pineapple commenced operations in December 2020. Pineapple did not have any revenue or cost of goods sold during the six-months ended June 30, 2021.

 

Pineapple incurred $2.6 million of operating expenses for the six months ended June 30, 2021, which included $1.4 million in transaction costs, $715,000 of intangible asset amortization expense, and $456,000 of selling, general and administrative expenses. The majority of the transaction costs were still payable as of June 30, 2021.

 

On December 11, 2020, Pineapple and Hercules entered into a loan and security agreement for a term loan to Pineapple in the principal amount of $7,500,000 to finance the acquisition of the Sungevity assets from Hercules Management. Pineapple also issued 3,000,000 of its Class A Units to Hercules as partial consideration for the asset purchase, which represents a 15.0% ownership interest in Pineapple. As of June 30, 2021 and December 31, 2020, there was $7,500,000 in term debt to Hercules outstanding. Pineapple had determined the fair value of the debt was $4.8 million as of the date of acquisition and no value was assigned to the equity units as an operating business was not acquired with steady, reliable cash flows, as well as the fact that no residual value exists beyond the acquired tangible and intangible assets. As of June 30, 2021 and December 31, 2020, the recorded value of the debt on the balance sheet was $5.6 million and $4.8 million, respectively. Pineapple incurred $729,000 in loan accretion and interest expense for the six months ending June 30, 2021.

 

Pineapple had outstanding $50,000 under the January 8, 2021 working capital loan and security agreement as of June 30, 2021 as compared to $0 at December 31, 2020, in order to pay certain payables and operating expenses.

 

Pineapple entered into an asset acquisition agreement on December 11, 2020 to purchase certain assets from Hercules Technology Management Co V, LLC (“Hercules Management”) that it had acquired in a public auction of assets of HoSoPo Corporation, Solar Spectrum LLC, and Solar Spectrum Holdings, LLC conducted by Hercules Capital, Inc. (“Hercules”). The assets sold by Hercules Management to Pineapple related to the Sungevity business and included tangible assets consisting of fixed assets and inventory, and intangible assets consisting of the Sungevity trade name and a database comprised of both historical existing and unconverted customer leads.

 

Pineapple has also accrued a payable of $2.0 million to Lake Street Solar LLC and $350,000 to Hercules relating to the Sungevity asset acquisition. The nature of the underlying costs are 

 

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considered indirect costs of the asset acquisition and have been expensed as acquisition-related costs from the period of inception (December 1, 2020) through December 31, 2020.

 

Impact of COVID-19 Pandemic

Pineapple is subject to risks and uncertainties as a result of the COVID-19 pandemic. Pineapple considered the emergence and pervasive economic impact of the COVID-19 pandemic in its assessment of its financial position, results of operations, cash flows, and certain accounting.  Pineapple is continuing to actively monitor the effects and potential impacts of the COVID-19 pandemic on all aspects of its business, liquidity and capital resources. The extent to which the COVID-19 pandemic may materially impact its financial condition, liquidity or results of operations is uncertain at this time.

Critical Accounting Policies

Intangible Assets

Intangible assets primarily consist of trademarks and are amortized using the straight-line method over the estimated useful lives of the respective trademarks, which are 36 months.

Impairment of Long-Lived Assets

The Company reviews its long-lived assets, including intangibles, for impairment whenever events or changes in circumstances indicate that the carrying amounts of the assets may not be fully recoverable. If indicators of impairment exist, management identifies the asset group which includes the potentially impaired long-lived asset, at the lowest level at which there are separate, identifiable cash flows. If the total of the expected undiscounted future net cash flows for the asset group is less than the carrying amount of the asset, a loss is recognized for the difference between the fair value and carrying amount of the asset. For the period of inception (December 1, 2020) through December 31, 2020 and the six months ended June 30, 2021, no impairment was identified.

Fair Value Measurements

Accounts payable approximate fair value because of the short-term nature of these instruments. The payables due to members are considered long term and due to the nature of the transaction, fair value is impractical to estimate.

To record estimates at fair value, Pineapple uses market data or assumptions that market participants would use in pricing the asset or liability, including assumptions about risk and the risks inherent in the inputs to the valuation technique. These inputs can be readily observable, market corroborated or generally unobservable. Pineapple primarily applies the market approach for recurring fair value measurements and attempt to use the best available information. Pineapple determines the fair value based upon the hierarchy that prioritizes the inputs used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurement) and lowest priority to unobservable inputs (Level 3 measurement).

The initial fair value of Pineapple’s long-term debt and assets acquired were determined based upon Level 3 inputs and are considered to be a non-recurring fair value measurement.

Asset Acquisition

Pineapple entered into an asset acquisition agreement on December 11, 2020 to purchase certain assets from Hercules Management. The Company has determined the transaction to be an asset acquisition and has identified the trademark and assets held for sale as identifiable assets. As the transaction did not involve the exchange of monetary consideration, the value associated with the asset acquisition was based on the Company’s most reliable indication of fair value, which is the estimated fair value of the debt and equity units issued in consideration.

Income Taxes

Pineapple elected to be treated as an association taxable as a corporation as of the date of formation. Pineapple applied a full valuation allowance to its deferred tax asset balance, resulting in a net deferred asset of $0 as of June 30, 2021 and December 31, 2020.

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Pineapple did not record any amounts related to penalties and interest during the six months ended June 30, 2021 and the period ended December 31, 2020. Pineapple management does not believe that Pineapple has any material uncertain tax positions as of June 30, 2021 and December 31, 2020.

Going Concern

The Company’s financial statements are prepared using generally accepted accounting principles, which contemplate the realization of assets and liquidation of liabilities in the normal course of business. Certain conditions raise substantial doubt about the ability of the Company to continue as a going concern. Also see “Liquidity and Capital Resources” section.

Results of Operations

Comparison of Six Months Ended June 30, 2021 and 2020

Pineapple expects to operate and consolidate solar companies to power the energy transition through grass-roots growth of solar electricity paired with battery storage on consumers’ homes. Pineapple plans on engaging in the acquisition and growth of local and regional solar, storage and energy service companies and providing solar, battery storage and other energy services to homeowners. Pineapple expects that the majority of its revenues will be derived from new installations of residential and commercial customers, which tend not to recur frequently and from the acquisition and growth of local and regional solar, storage and energy service companies. Opportunity for long-term growth will be focused on the United States and will be dependent on the completion of the merger, Pineapple’s acquisition strategy and funding, including through the PIPE Offering. 

Pineapple has not included any financial data in this subsection as of or for the six months ended June 30, 2020 because Pineapple was not formed until December 1, 2020.

Sales and cost of sales were $0 for the six months ended June 30, 2021.

Operating expenses for the six months ended June 30, 2021 were $2.6 million, which included $1.4 million in transaction costs (see “Acquisitions and Dispositions” below), $715,000 in intangible asset amortization expense and $456,000 of selling, general, administration costs.

Interest and accretion of loan expense was $729,000 for the six months ended June 30, 2021. The increase in loans payable is attributable to this expense.

Pineapple disposed of assets held for sale for no gain or loss during the six months ended June 30, 2021, which provided $480,000 in working capital.

Current liabilities increased to $1.6 million as of June 30, 2021 as compared to $11,000 as of December 31, 2020. This increase is primarily due to transaction costs of $1.4 million that were included in payables as of June 30, 2021.

Comparison of Year Ended December 31, 2020 and 2019

The “period ended December 31, 2020” is the period from Pineapple’s formation on December 1, 2020 to December 31, 2020. No financial data is included for periods prior to Pineapple’s date of formation.

Sales were $0 for the period ended December 31, 2020 as Pineapple did not start operations until 2021.

There were two transactions in the period ended December 31, 2020. The first was an asset acquisition and the second was indirect costs of the asset acquisition that have been expensed as acquisition-related costs from the period of inception (December 1, 2020).

Asset Acquisition

On December 11, 2020, Pineapple purchased certain assets from Hercules Management that it had acquired in a public auction of assets of HoSoPo Corporation, Solar Spectrum LLC, and Solar Spectrum Holdings, LLC conducted by Hercules. The assets sold by Hercules Management to Pineapple related to the Sungevity business and

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included tangible assets consisting of fixed assets and inventory, and intangible assets consisting of the Sungevity trade name, and a database comprised of both historical existing and unconverted customer leads (such acquisition, the “Asset Acquisition”).

On December 11, 2020, Pineapple and Hercules entered into a loan and security agreement for a term loan to Pineapple in the principal amount of $7.5 million to finance the acquisition of the Sungevity assets from Hercules Management. Pineapple also issued 3,000,000 of its Class A Units to Hercules as partial consideration for the asset purchase, which represents a 15.0% ownership interest in Pineapple.

Pineapple determined this transaction to be an asset acquisition and has identified the trademark and assets held for sale as identifiable assets. Pineapple determined the fair value of the debt was $4.8 million at the date of acquisition. The assets held for sale are recorded at fair market value, which approximates the amount received from the sale of these assets subsequent to year-end. The remaining difference between the fair value of the debt and the assets held for sale has been ascribed to the Sungevity tradename and will be amortized over a 36-month period. No value has been assigned to the equity units as an operating business was not acquired with steady, reliable cash flows, as well as the fact that no residual value exists beyond the acquired tangible and intangible assets. Equity value creation will be dependent upon future business execution and growth following the bankruptcy exit and conversion of customer leads. This transaction accounts for the increase in assets held for sale of $480,000, intangible assets of $4.2 million and loans payable of $4.8 million.

Acquisition Related Transaction Costs

As of December 31, 2020, Pineapple has accrued a payable of $2.0 million to Lake Street Solar LLC and $350,000 to Hercules relating to the asset acquisition (see above). The nature of the underlying costs are considered indirect costs of the asset acquisition and have been expensed as acquisition-related costs from the period of inception (December 1, 2020) through December 31, 2020. This transaction accounts for the increase in payables due to members of $2.35 million in 2020.

Income Taxes

Pineapple has elected to be treated as an association taxable as a corporation as of the date of formation. Pineapple had a deferred tax asset as of June 30, 2021 and December 31, 2020 of $1.7 million and $710,000, respectively. Pineapple has applied a valuation allowance as of June 30, 2021 and December 31, 2020 of $1.7 million and $710,000, respectively, therefore Pineapple’s net deferred tax asset is $0 as of June 30, 2021 and December 31, 2020. As of June 30, 2021 and December 31, 2020, Pineapple had net operating loss carryforwards of $828,000 and $62,000, respectively, that do not expire. Tax expense for the six months ended June 30, 2021 and the period ended December 31, 2020 were $0.

Pineapple did not record any amounts related to penalties and interest during the six months ended June 30, 2021 and the period ended December 31, 2020. Pineapple management does not believe that Pineapple has any material uncertain tax positions as of June 30, 2021 and December 31, 2020.

Acquisitions and Dispositions

Other than the Sungevity asset acquisition on December 11, 2020, there were no acquisitions or dispositions in the period ended December 31, 2020 or the six months ended June 30, 2021.

On March 1, 2021, Pineapple entered into an asset purchase agreement with Hawaii Energy Connections, LLC and E-Gear, LLC (“HEC”), Hawaii limited liability companies, under which HEC and E-Gear agreed to sell to Pineapple substantially all their assets for an aggregate purchase price of $12.5 million cash payable at closing, subject to a working capital adjustment following closing, plus equity in Pineapple consisting of 6,250,000 Class B Units of Pineapple, representing approximately 40% ownership in Pineapple.

On March 1, 2021, Pineapple also entered into an Agreement and Plan of Merger with Communications Systems, Inc., a Minnesota corporation, Helios Merger Co., a Delaware corporation and a wholly owned subsidiary of CSI, Lake Street Solar LLC, a Delaware limited liability company, and Randall D. Sampson, as the Shareholders’ Representative, pursuant to which Merger Sub will merge with and into Pineapple with Pineapple surviving the

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merger as a wholly owned subsidiary of CSI. The merger is subject to approval by CSI shareholders and is expected to close in 2022.

The sale of assets by HEC and E-Gear to Pineapple is conditioned on the concurrent closing of the merger transaction with CSI and is expected to close in 2022.

Effects of Inflation

Inflation has not had a significant effect on Pineapple’s operations. Pineapple does not have long-term production or procurement contracts expects to be able to adjust pricing and purchasing decisions to respond to inflationary pressures.

Liquidity and Capital Resources

As of June 30, 2021, Pineapple had cash of $177,000. Pineapple incurred a net loss of $3.3 million for the six months ended June 30, 2021 and Pineapple’s members’ deficit as of June 30, 2021 was $5.8 million.

As of December 31, 2020, Pineapple had no cash and during the period from inception (December 1, 2020) through December 31, 2020, Pineapple incurred a net loss of $2.5 million.

Cash flow used in operations was $353,000 for the six months ended June 30, 2021, which is primarily due to payment of transaction and other operating costs. Cash flow from investing activities was $480,000 for the six months ended June 30, 2021 due to proceeds Pineapple received from the sale of assets held for sale. Pineapple also received proceeds from borrowings on a working capital loan of $50,000 during the six months ended June 30 2021, which is considered a financing activity. Overall, Pineapple’s cash increased by $177,000 during the six months ended June 30, 2021.

Pineapple’s ability to continue as a going concern is dependent upon its ability to generate revenue and its ability to complete its planned merger with a subsidiary of CSI, which if completed, will increase Pineapple’s liquidity through the anticipated completion of a $32 million round of equity financing referred to as the PIPE Offering. Pineapple has also undertaken various initiatives during 2021 that Pineapple management believes will positively impact operations, including investing in a sales force, and limiting other operational costs. Pineapple plans to grow its operating expenses consistent with revenue growth. Among other conditions, Pineapple’s proposed merger with a subsidiary of CSI is subject to approval by CSI’s shareholders as described in this proxy statement/prospectus. There are no assurances the merger will be approved or completed or that Pineapple will be able to obtain financing necessary to scale its operations, execute on its business plan or to generate the revenue necessary to fund operations. The financial statements contain no adjustments for the outcome of this uncertainty.

Loan and Security Agreements

Working Capital Loan and Security Agreement

On January 8, 2021, Pineapple and Hercules Capital, Inc., as agent for itself and the lenders, entered into a Working Capital Loan and Security Agreement for a working capital loan in the maximum principal amount of $500,000. The lenders, Hercules and Northern Pacific Growth Investment Advisors, LLC, made working capital loan commitments of $400,000 and $100,000, respectively. Northern Pacific Growth Investment Advisors, LLC is an affiliate of Northern Pacific Group, which controls Lake Street Solar, LLC, a member of Pineapple. Borrowings under the working capital loan agreement bear interest at 10.00% per annum with interest compounded daily and payable monthly. As of June 30, 2021 and December 31, 2020, the balance outstanding on the working capital loan was $50 and $0, respectively. The loan is collateralized by all of Pineapple’s assets. The working capital loan has a maturity date of January 7, 2022.

If a Qualified PIPE Transaction occurs on or prior to the maturity date of January 7, 2022, then the outstanding principal amount of the working capital loan held by Hercules, and all accrued and unpaid interest, will automatically convert into PIPE Transaction Equity issued in such Qualified PIPE Transaction at a price equal to the lowest price per unit paid by the other purchasers of the Qualified PIPE Transaction Equity. The term Qualified PIPE Transaction means a PIPE Transaction that generates proceeds to Pineapple of at least $20 million in the

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aggregate. PIPE Transaction means the offer and sale of equity securities and/or securities exercisable or exchangeable into or for equity securities in a transaction exempt from registration under the Securities Act of 1933, as amended, by an issuer with a class of securities registered or otherwise publicly traded or contemplated to be publicly traded, whether by merger, reverse merger or otherwise. Additionally, if the Company issues and sells PIPE Transaction Equity that does not constitute a Qualified PIPE Transaction prior to the maturity date of January 7, 2022 and the automatic conversion of the Hercules working capital loan as described above does not occur, then Hercules has the option to convert its working capital loan into PIPE.

Term Loan and Security Agreement

On December 11, 2020, Pineapple and Hercules entered into a loan and security agreement for a term loan to Pineapple in the principal amount of $7,500,000 to finance the acquisition of the Sungevity assets from Hercules Management.

The term loan is secured by, among other things, the assets purchased by Pineapple. Subject to certain exceptions, the term loan is also secured by Pineapple’s personal property, including without limitation certain receivables, equipment, fixtures, intellectual property, inventory, investment property, deposit accounts, cash, and goods, in each case whether now or hereafter owned or existing.

Subject to certain conditions, borrowings under the loan and security agreement bears interest at 10.00% per annum with interest compounded daily and added to the principle balance quarterly, in arrears. The loan and security agreement contains customary representations and warranties and financial and other covenants and conditions.

Under the loan and security agreement, Hercules is entitled to the highest priority lien on the collateral, including with respect to the payment of $2,000,000 of accounts payable that are or may be owed to Lake Street Solar LLC and $350,000 of accounts payable that are or may be owed to Hercules, each of which is subordinate to the payment of Pineapple’s obligations under the loan and security agreement. Under the loan and security agreement, this aggregate $2,350,000 in payables to Pineapple members may only be repaid under certain conditions, including the requirement that no obligations are outstanding under the loan and security agreement and that Pineapple or its subsidiaries has closed on an equity transaction generating at least $30 million in proceeds.

The entire term loan principal balance and all accrued but unpaid interest is due and payable on December 10, 2023.

New Accounting Pronouncements

See Note 2 of the “Notes to the Financial Statements” for a discussion of new accounting standards.

Off Balance Sheet Arrangements

None.

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HEC AND E-GEAR MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

You should read the following discussion and analysis of HEC and E-Gear’s financial condition and results of operations together with HEC and E-Gear’s financial statements and related notes appearing elsewhere in this proxy statement/prospectus. This discussion and analysis contains forward-looking statements based upon current expectations that involve risks and uncertainties. HEC and E-Gear’s actual results may differ materially from those anticipated in these forward-looking statements as a result of various factors, including those discussed in the section entitled “RISK FACTORS” and in other sections of this proxy statement/prospectus. Please also see the section entitled “CAUTION CONCERNING FORWARD- LOOKING STATEMENTS.” References in this section to (i) “HEC” refer to Hawaii Energy Connection, LLC, (ii) “E-Gear” refer to E-Gear, LLC and (iii) the “Combined Hawaiian Company” refer to HEC and E-Gear on a combined basis.

Overview

HEC and E-Gear were incorporated under the laws of Hawaii on February 27, 2007 and February 8, 2012, respectively. HEC is a leading sustainable energy provider, with over 9,000 residential systems installed and growing. E-Gear operates as a technology developer and manufacturer of energy management software and hardware in Hawaii.

Key 2021 Developments

 

The Combined Hawaiian Company’s sales for the six months ended June 30, 2021 were $6.5 million, a 25% decrease from its sales for the six months ended June 30, 2020 of $8.6 million. The Combined Hawaiian Company’s cost of sales for the six months ended June 30, 2021 were $4.9 million, a decrease of 21% from its cost of sales for the six months ended June 30, 2020 of $6.2 million.

 

 

The Combined Hawaiian Company’s net loss for the six months ended June 30, 2021 was $103,000, compared to net income of $504,000 for the six months ended June 30, 2020.

 

 

As of June 30, 2021, the Combined Hawaiian Company had cash of $1.2 million and working capital of $2.0 million compared to cash of $1.5 million and working capital of $3.0 million as of December 31, 2020.

 

 

The Combined Hawaiian Company’s operating expenses for the six months ending June 30, 2021 were $1.7 million, a decrease of 19% from its operating expenses of $2.1 million for the six months ended June 30, 2020.

 

 

During the year ended December 31, 2020, HEC received an unsecured loan in the amount of $553,000 under the Paycheck Protection Program (or “PPP”). HEC elected to account for proceeds of its PPP loan under International Accounting Standards (“IAS”) 20 Accounting for Governmental Grants and Disclosure of Government Assistance. During the six months ended June 30, 2021 and during the year ended December 31, 2020, HEC recorded $96,000 and $553,000 as governmental grant income for eligible costs incurred under the program, respectively. On January 13, 2021, HEC received notice of forgiveness of the full amount of the loan from the Small Business Administration.

 

Impact of COVID-19 Pandemic

The Combined Hawaiian Company is subject to risks and uncertainties as a result of the COVID-19 pandemic. As a response to the COVID-19 pandemic, HEC has implemented a controlled schedule, social distancing, mask requirements for employees permitted to use the office, implementation of an infectious disease prevention policy, and required quarantine for out of state travel of any kind before returning to work; while E-Gear has not implemented such procedures because it does not have employees. The Combined Hawaiian Company experienced supply chain and demand disruptions during 2020 and 2021 and expects the disruption to its supply chain to continue throughout 2021, as well as higher logistics and operational costs due to the COVID-19 pandemic. The Combined Hawaiian Company has also seen a decrease in demand for its solar solutions due to the COVID-19 pandemic.

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The Combined Hawaiian Company considered the emergence and pervasive economic impact of the COVID-19 pandemic in our assessment of its financial position, results of operations, cash flows, and certain accounting.  HEC received a PPP loan in the amount of $553,000, of which $96,000 was recorded as governmental grant income during the six month period ended June 30, 2020. The Combined Hawaiian Company has not identified any specific impairment triggering event from circumstances originating from COVID-19. The Combined Hawaiian Company is continuing to actively monitor the effects and potential impacts of the COVID-19 pandemic on all aspects of its business, liquidity and capital resources. The extent to which the COVID-19 pandemic may materially impact the Combined Hawaiian Company’s financial condition, liquidity or results of operations is uncertain at this time.

Critical Accounting Policies

Basis of Presentation and Principles of Combination: The Combined Hawaiian Company’s financial statements include the results of HEC and E-Gear. The Combined Hawaiian Company has determined the basis for preparation of combined financial statements is due to common ownership and management of the entities. Intercompany accounts and transactions have been eliminated upon combination. The Combined Hawaiian Company uses a qualitative approach to identify a controlling financial interest in a variable interest entity (VIE) and performs an ongoing assessment of whether its interest makes HEC the primary beneficiary of E-Gear. HEC holds a variable interest in E-Gear in the form of a receivable of $1.9 million and $1.7 million as of June 30, 2021 and December 31, 2020, respectively, which is eliminated in combination. 

Inventories: Inventories, which consist primarily of materials and supplies used in the construction of solar arrays, are stated at lower of cost or net realizable value, with costs computed on an average cost basis. The Combined Hawaiian Company periodically reviews its inventories for excess and obsolete items and adjusts carrying costs to estimated net realizable values when they are determined to be less than cost.

Revenue Recognition: The Combined Hawaiian Company recognizes revenue in accordance with the core principle of ASC 606 when there is a transfer of control of promised goods or services to customers in an amount that reflects the consideration that the Combined Hawaiian Company expects to be entitled to in exchange for those goods or services.

The Combined Hawaiian Company sells solar power systems under construction and development agreements to residential and commercial customers. The completed system is sold as a single performance obligation. For residential contracts, revenue is recognized at the point-in-time when such systems are placed into service. Any advance payments received in the form of customer deposits are considered to be contract liabilities.

Commercial contracts are generally completed within three to twelve months from commencement of construction. Construction on large projects may be completed within eighteen to twenty-four months, depending on the size and location of the project.  Revenue from commercial contracts are recognized as work is performed based on the estimated ratio of costs incurred to date to the total estimated costs at the completion of the performance obligation.

All other revenues for sales of components or maintenance are recorded at the point that the control transfers to the customer, which typically occurs upon shipment or delivery to the customer.

Cost of Revenue: Cost of revenue consists of expenses relating to salaries and benefits of supporting engineers and other direct supporting personnel, materials and supplies, depreciation of fixed assets and other costs incurred to directly support the fulfillment of the revenue contracts.

Warranties: Warranties for the Combined Hawaiian Company are limited to labor on installation. Expenses related to warranties on labor were minimal for the six months ended June 30, 2021 and 2020.

Results of Operations

Comparison of Six Months Ended June 30, 2021 and 2020

Combined Hawaiian Company sales for the six months ended June 30, 2021 were $6.5 million, a 25% decrease from sales of $8.6 million for the six months ended June 30, 2020. Net loss for the six months ended June 30, 2021 was $103,000 compared to net income of $504,000 for the six months ended June 30, 2020.

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HEC Results

HEC sales decreased 25% to $6.5 million for the six months ended June 30, 2021 compared to $8.6 million for the six months ended June 30, 2020. Commercial revenue increased 500% to $240,000 for the six months ended June 30, 2021 compared to $40,000 for the six months ended June 30, 2020. Residential revenue decreased to $6.2 million for six months ended June 30, 2021 compared to $8.5 million for the six months ended June 30, 2020. The decrease in residential revenue is primarily due to significant weather events in the first quarter of 2021 and delayed project spending by customers due to the effect of the COVID-19 pandemic.

Gross profit decreased 32% to $1.7 million for six months ended June 30, 2021 compared to $2.5 million for the six months ended June 30, 2020. Gross margin as a percentage of sales decreased to 26% for the six months ended June 30, 2021 from 29% for the six months ended June 30, 2020 primarily due to additional shipping and handling costs and delays due to the effect of the COVID-19 pandemic.

Operating expenses decreased 19% to $1.6 million for the six months ended June 30, 2021 as compared to $2.0 million for the six months ended June 30, 2020. The decrease is primarily due to lower commissions and gross earnings tax, which are both based off revenues.

HEC had operating income of $36,000 for the six months ended June 30, 2021 compared to operating income of $457,000 for the six months ended June 30, 2020, primarily due to lower sales and gross margin.

HEC other income decreased to $6,000 for the six months ended June 30, 2021 as compared to $195,000 for the six months ended June 30, 2020, which is primarily due to government grant income recognized in connection with eligible costs incurred under the PPP loan.

E-Gear Results

E-Gear sales increased 100% to $34,000 for the six months ended June 30, 2021 compared to $0 for the six months ended June 30, 2020. The increase in revenue is due to royalties and sales of software.

Gross profit decreased 21% to ($103,000) for the six months ended June 30, 2021 compared to ($85,000) the six months ended June 30, 2020. Gross margin as a percentage of sales decreased primarily due to E-Gear continuing to focus on development of software in the six months ended June 30, 2021.

Operating expenses decreased 22% to $42,000 for the six months ended June 30, 2021 compared to $54,000 for the six months ended June 30, 2020. The decrease is primarily the result of less attorney costs for patents.

E-Gear had an operating loss of $145,000 for the six months ended June 30, 2021 compared to an operating loss of $139,000 for the six months ended June 30, 2020, primarily due to increased expenses.

Comparison of Year Ended December 31, 2020 and 2019

Combined Hawaiian Company sales were $19.0 million for the year ended December 31, 2020, a 1.4% decrease from sales of $19.2 million in the year ended December 31, 2019. Net income in the year ended December 31, 2020 was $2.0 million compared to net income of $1.9 million in the year ended December 31, 2019.

HEC Results

HEC sales decreased 0.5% to $18.9 million in the year ended December 31, 2020 compared to $19.0 million in the year ended December 31, 2019. Commercial revenue decreased 38% to $141,000 in the year ended December 31, 2020 compared to $228,000 in the year ended December 31, 2019. Residential revenue did not change from $18.8 million in the years ended December 31, 2020 and 2019. The decrease in commercial revenue is primarily due to delayed project spending by customers due to the effect of the COVID-19 pandemic.

Gross profit decreased 7.2% to $5.9 million in the year ended December 31, 2020 compared to $6.4 million in the year ended December 31, 2019. Gross margin as a percentage of sales decreased to 31% in the year ended December 31, 2020 from 34% in the year ended December 31, 2019 primarily due to additional shipping and handling costs and delays due to the effect of the COVID-19 pandemic.

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Operating expenses remained consistent at $4.3 million in the years ended December 31, 2020 and 2019.

HEC had operating income of $1.7 million in the year ended December 31, 2020 compared to operating income of $2.1 million in the year ended December 31, 2019, primarily due to lower sales and gross margin.

HEC other income increased to $556,000 for the year ended December 31, 2020 compared to other income of $3,000 for the year ended December 31, 2019, due to $553,000 of government grant income recognized in connection with eligible costs incurred under the PPP loan.

E-Gear Results

E-Gear sales decreased 89% to $22,000 for the year ended December 31, 2020 compared to $198,000 for the year ended December 31, 2019. The decrease in revenue is primarily due to focus on the HEC entity by management due to the effect of the COVID-19 pandemic.

Gross profit decreased 154% to ($89,000) for the year ended December 31, 2020 compared to $165,000 for the year ended December 31, 2019. Gross margin as a percentage of sales decreased to (340%) for the year ended December 31, 2020 from 74% for the year ended December 31, 2019, primarily due to E-Gear focusing on the development of software and decreased sales in the year ended December 31, 2020.

Operating expenses decreased 61% to $141,000 in the year ended December 31, 2020 compared to $360,000 in the year ended December 31, 2019. The decrease is primarily the result of less attorney costs for patents.

E-Gear had an operating loss of $230,000 for the year ended December 31, 2020 compared to an operating loss of $195,000 the year ended December 31, 2019, primarily due to the lower revenue and gross margin.

Income Taxes

The Combined Hawaiian Company is treated as a partnership for income tax purposes and all income and expenses are reported in the tax returns of its members. The Combined Hawaiian Company did not record any amounts related to penalties and interest during the six months ended June 30, 2021 and 2020 and during the years ended December 31, 2020 and 2019. Management does not believe that the Combined Hawaiian Company has any material uncertain tax positions as of June 30, 2021 and December 31, 2020.

Acquisitions and Dispositions

There were no acquisitions or dispositions during the during the six months ended June 30, 2021 or the years ended December 31, 2020 and 2019.

On March 1, 2021, the Combined Hawaiian Company entered into an asset purchase agreement with Pineapple, under which the Combined Hawaiian Company agreed to sell to Pineapple substantially all the assets of the Combined Hawaiian Company for an aggregate purchase price of $12.5 million cash payable at closing, subject to a working capital adjustment following closing, plus equity in Pineapple consisting of 6,250,000 Class B Units of Pineapple, representing approximately 40% ownership in Pineapple.

Also on March 1, 2021, Pineapple entered into an Agreement and Plan of Merger with Communications Systems, Inc., a Minnesota corporation, Helios Merger Co., a Delaware corporation and a wholly-owned subsidiary of CSI, Lake Street Solar LLC, a Delaware limited liability company, and Randall D. Sampson, as the Shareholders’ Representative, pursuant to which Merger Sub will merge with and into Pineapple with Pineapple surviving the merger as a wholly owned subsidiary of CSI. The merger is subject to approval by CSI shareholders and is expected to close in 2022.

The sale of assets by the Combined Hawaiian Company to Pineapple is conditioned on the concurrent closing of the Pineapple merger and is expected to close in 2022.

Effects of Inflation

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Inflation has not had a significant effect on Combined Hawaiian Company operations in recent years. The Combined Hawaiian Company does not have long-term production or procurement contracts and has historically been able to adjust pricing and purchasing decisions to respond to inflationary pressures.

Liquidity and Capital Resources

As of June 30, 2021, the Combined Hawaiian Company had approximately $1.2 million in cash, compared to $1.5 million as of December 31, 2020.

The Combined Hawaiian Company had working capital of $2.0 million, consisting of current assets of approximately $3.1 million and current liabilities of $1.1 million as of June 30, 2021 compared to working capital of $3.0 million, consisting of current assets of $4.9 million and current liabilities of approximately $1.9 million as of December 31, 2020.

The Combined Hawaiian Company’s cash flow generated from operating activities was $729,000 for the six months ended June 30, 2021 compared to $711,000 generated for the six months ended June 30, 2020.

The Combined Hawaiian Company’s cash used in investing activities was $12,000 for six months ended June 30, 2021 compared to $91,000 for the six months ended June 30, 2020. The Combined Hawaiian Company did not purchase any property, plant and equipment for the for the six months ended June 30, 2021 compared to $82,000 for the six months ended June 30, 2020.

The Combined Hawaiian Company’s net cash used in financing activities was $945,000 for the six months ended June 30, 2021 compared to $1.1 million used in the six months ended June 30, 2020. The Combined Hawaiian Company’s cash payment of loans payable decreased to $0 for the six months ended June 30, 2021 from $791,000 for the six months ended June 30, 2020. The Combined Hawaiian Company’s distributions to members increased to $945,000 for the six months ended June 30, 2021 from $282,000 for the six months ended June 30, 2020.

The Combined Hawaiian Company’s cash flow generated from operating activities was approximately $1.7 million for the year ended December 31, 2020 compared to $2.5 million generated in the year ended December 31, 2019. The Combined Hawaiian Company’s significant working capital changes for the year ended December 31, 2019 to the year ended December 31, 2020 included a $1.5 million decrease in accounts receivable, $400,000 increase in inventory, and a $1.4 million decrease in customer deposits.

The Combined Hawaiian Company’s cash used in investing activities was $165,000 for the year ended December 31, 2020 compared to $52,000 used in the year ended December 31, 2019.

The Combined Hawaiian Company’s net cash used in financing activities was $2.0 million for the year ended December 31, 2020 compared to $1.1 million used in the year ended December 31, 2019. The Combined Hawaiian Company’s cash payment of loans payable increased from $751,000 for the year ended December 31, 2019 to $975,000 for the year ended December 31, 2020. The Combined Hawaiian Company’s distributions to members increased from $306,000 for the year ended December 31, 2019 to $985,000 for the year ended December 31, 2020.

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Line of Credit

During the years ended December 31, 2020 and 2019, HEC had a $400,000 credit agreement with American Savings Bank, F.S.B. (“ASB”) to provide a revolving line of credit. HEC had $0 outstanding as of December 31, 2020 and $400,000 outstanding as of December 31, 2019. This line of credit matured on May 18, 2021 and was not renewed.

During the year ended December 31, 2020, the Combined Hawaiian Company repaid $402,000 in loans payable to its members, a loan payable to ASB in the amount of $173,000, and $400,000 in borrowings outstanding under its revolving line of credit with ASB.

As of June 30, 2021 and December 31, 2020, there were no loans outstanding.

Contractual Obligation Summary

As of December 31, 2020, the Combined Hawaiian Company had no other material commitments (either cancelable or non-cancelable) for capital expenditures, short or long-term debt, capital leases or other purchase commitments related to ongoing operations.

New Accounting Pronouncements

See Note 2 of the “Notes to the Combined Financial Statements” for a discussion of new accounting standards.

Off Balance Sheet Arrangements

None.

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MANAGEMENT OF THE COMBINED COMPANY

Under the merger agreement, CSI is obligated take all action necessary to cause Kyle Udseth and Mark D. Fandrich to be appointed as the chief executive officer and chief financial officer, respectively, of the combined company as of the effective time of the merger. Additionally, CSI will cause the number of members of the CSI board of directors to be fixed at seven as of the effective time of the merger and will cause to be elected as directors Roger H.D. Lacey, Randall D. Sampson, Kyle Udseth and Scott Honour plus up to three additional persons proposed by Pineapple at least 45 days prior to the effective time of the merger to and approved by CSI, which approval may not be unreasonably withheld. If any person identified in accordance with the merger agreement is unable or unwilling to serve in such capacity, the party making such appointment will designate a successor. Richard A. Primuth, Steven C. Webster and Michael R. Zapata, current members of the CSI board of directors, will resign at the effective time of the merger.

The following table provides information regarding the expected directors and executive officers of the combined company following the closing of the merger. Neither Mr. Udseth nor Mr. Honour have any current role with CSI and will not have any role with CSI until the closing of the merger.

Name

Age

Position

Roger H.D. Lacey

71

Chair of the Board, Director

Kyle Udseth

41

Chief Executive Officer, Director

Mark D. Fandrich

60

Chief Financial Officer

Kristin A. Hlavka

40

Corporate Controller

Scott Honour

55

Director

Randall D. Sampson

63

Director

Executive Officers of the Combined Company

Kyle Udseth founded Pineapple in 2020 and has served as chief executive officer of Pineapple and has served on its board of managers since its inception. Prior to founding Pineapple, Mr. Udseth served in various executive roles at leading national residential solar companies starting in 2015, such as: vice president of sales at Sungevity from August to November of 2020, senior director of marketing and customer experience at Sunnova from October of 2018 to August of 2020, and head of customer marketing at Sunrun from August of 2015 to September of 2018. Mr. Udseth holds a bachelor’s degree in economics from Carleton College and an MBA from the Stanford Graduate School of Business. We

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have determined that Mr. Udseth’s business experience and management background will contribute to the board of directors of the combined company.

Mark D. Fandrich was appointed chief financial officer of CSI in August 2016. From July 2015 to August 2016, he served as Vice President of Finance of Suttle, Inc. From April 2004 to July 2015, he was Corporate Controller for The Bergquist Company, a global supplier of thermal interface material.

Kristin A. Hlavka was appointed corporate controller of CSI in May 2011. From July 2008 to April 2011, she served as the Assistant Corporate Controller. Prior to July 2008, she was an auditor for Deloitte and Touche LLP.

Non-Employee Directors of the Combined Company

Roger H.D. Lacey served as CSI’s chief executive officer from February 2015 until November 30, 2020 and has served as the executive chairman of CSI board of directors since December 2018. He also assumed the additional role of interim chief executive officer on August 2, 2021 when Ms. Kumar’s employment was terminated in connection with the closing of the E&S Sale Transaction. Mr. Lacey has been a CSI director since 2008, served as board vice chair from September 2013 until December 2018 and interim chief executive officer from June 2014 until February 2015. Mr. Lacey was senior vice president of strategy and corporate development at the 3M Company from 2009 to his retirement in 2013. He was the 3M Company’s chief strategy officer and head of global mergers and acquisitions from 2000 to 2013. Mr. Lacey’s career with 3M began in 1975; from 1989 to 2000 he held various senior positions including serving as division vice president of 3M Telecom Division. In addition, Mr. Lacey served as a member of the corporate venture capital board for internal and external new venture investments from 2009 to 2013. In addition, he is a board member of Johnsonville Sausage Corporation, a leading US food company, and also a Senior Partner in CGMR Capital, a private equity firm. He is a member of the board of governors for Opus Business School, University of St. Thomas; a visiting professor of strategy and corporate development, Huddersfield University; a founding member of the Innovation Lab at MIT; and is a former vice chair of Abbott Northwestern Hospital Foundation. Mr. Lacey brings a unique perspective that combines familiarity with key telecommunication and data markets around the world combined with deep experience in strategic planning and business development.

Randall D. Sampson has been a CSI director since 1999 and the lead independent director since December 2018. He currently serves as chair of the audit & finance committee, and also is a member of the compensation committee. Mr. Sampson is the president, chief executive officer, and a board member of Canterbury Park Holding Corporation (“CPHC”), positions he has held since 1994. CPHC is a public company (Nasdaq: CPHC) based in Shakopee, Minnesota that re-launched a failed pari-mutuel race track and stimulated the revival of Minnesota’s horse breeding and training industries. Under his leadership, the Canterbury Park Racetrack has become a unique, family-friendly venue for live horse races and other entertainment, as well as pari-mutuel and card club wagering. Before becoming one of the three co-founders of CPHC in 1994, and after graduating from college with a degree in accounting, Mr. Sampson worked for five years in the audit department of a large public accounting firm where he earned his CPA certification, subsequently gained experience as a controller of a private company, served as a chief financial officer of a public company and managed Sampson family interests in horse breeding and training. The challenging nature of Canterbury Park’s business has demanded from its CEO an entrepreneurial mindset, attention to expense control, continuous innovation in marketing, and attention to the needs of customers, which, along with other qualities, Mr. Sampson uniquely brings to the governance responsibilities of the board of directors.

Scott Honour has served as a director of EVO Transportation & Energy Services, Inc. since November 2016 and has served as a member of its audit committee since February 2019. Mr. Honour also serves as Managing Partner of Northern Pacific Group, a Wayzata, Minnesota based private equity firm, where he has served since 2012. Previously, from 2002 to 2012, he was Senior Managing Director of The Gores Group, a Los Angeles based private equity firm with $4 billion of capital under management. Prior to that, Mr. Honour was a Managing Director at UBS Investment Bank from 2000 to 2002 and an investment banker at DLJ from 1991 to 2000. He began his career at Trammell Crow Company in 1988. Mr. Honour also co-founded YapStone, Inc. in 1999. Mr. Honour holds a BS in business administration and a BA in economics from Pepperdine University and an MBA in finance and marketing from the Wharton School of the University of Pennsylvania. We believe Mr. Honour’s business and board experience will contribute to the board of directors of the combined company.

 

Independence of the Combined Company Board of Directors

Under the Nasdaq listing standards, a majority of the members of the combined company’s board of directors must qualify as “independent,” as affirmatively determined by the board of directors. The board of directors has affirmatively determined that all of the expected directors, except for Messrs. Lacey and Udseth, are independent directors within the meaning of the applicable Nasdaq listing standards. All members of the combined company’s audit and finance committee and compensation committee will be independent directors under the applicable Nasdaq listing standards.

Combined Company Board Leadership

The combined company’s board of directors will be responsible for the control and direction of the combined company. The chair of the combined company’s board of directors will be selected by the combined company’s board of directors. Initially, Mr. Lacey will serve as the chair of the combined company board. Mr. Sampson is expected to serve as the lead independent director of the combined company board and in that role, he will provide leadership to the independent directors, liaise with chair and the chief executive officer on behalf of the independent directors, and advise the board on matters where there may be an actual or perceived conflict of interest.

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Committees of the Combined Company’s Board of Directors

The CSI board has established two standing committees, each of which will continue following the effective time of the merger: audit & finance and compensation. Only members of the board of directors have served and will serve on these committees.

The expected composition and responsibilities of each committee are described below. Members will serve on these committees until their resignations or until otherwise determined by the board of directors. The audit and finance committee and the compensation committee each will operate under a written charter adopted by the combined company board of directors, each of which will be available on the combined company’s website.

Audit and Finance Committee. The audit and finance committee is responsible for the engagement, retention and replacement of the independent registered public accounting firm, approval of transactions between CSI and a director or executive officer unrelated to service as a director or officer, approval of non-audit services provided by CSI’s independent registered public accounting firm, oversight of CSI’s internal controls and the receipt, retention and treatment of complaints regarding accounting, internal controls and auditing matters. CSI’s independent registered public accounting firm reports directly to the audit & finance committee. The expected members of the audit & finance committee are Randall D. Sampson (Chair),              and              , each of whom is independent under applicable SEC rules and Nasdaq listing standards. In addition, the CSI board of directors has determined that Randall D. Sampson qualifies as an audit committee financial expert.

Compensation Committee. The compensation committee is responsible for the overall compensation strategy and policies of CSI; reviews and approves the compensation and other terms of employment of CSI’s chief executive officer and other executive officers, subject to final board approval; oversees the establishment of performance goals and objectives for CSI’s executive officers; administers CSI’s incentive compensation plans, including the 2021 Equity Incentive Plan; considers the adoption of other or additional compensation plans; and provides oversight and final determinations with respect to CSI’s 401(k) plan, employee stock ownership plan and other similar employee benefit plans. The expected members of the compensation committee are             (Chair),              and             , each of whom is independent under applicable SEC rules and Nasdaq listing standards.

Code of Business Conduct and Ethics for Employees, Executive Officers, and Directors of the Combined Company

Following the effective time of the merger, the combined company board of directors will adopt a Code of Business Conduct and Ethics, or the Code of Conduct, applicable to all of the combined company’s employees, executive officers and directors. The Code of Conduct will be available at the investors section of the CSI website at www. commsystems.com. Information contained on or accessible through this website is not a part of this proxy statement/prospectus, and the inclusion of such website address in this proxy statement/prospectus is an inactive textual reference only. Any amendments to the Code of Conduct, or any waivers of its requirements, are expected to be disclosed on its website to the extent required by applicable rules and exchange requirements.

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RELATED PARTY TRANSACTIONS

Described below are any transactions occurring since January 1, 2019 and any currently proposed transactions to which either CSI or Pineapple was a party and in which:

 

the amounts involved exceeded or will exceed the lesser of $120,000 or 1% of the average of CSI or Pineapple total assets, as applicable, at year-end for the last two completed fiscal years; and

 

a director, executive officer, holder of more than 5% of the outstanding capital stock of CSI or equity interests of Pineapple, or any member of such person’s immediate family had or will have a direct or indirect material interest.

 

In addition to the transactions described below, please see the compensation agreements and other arrangements described under the sections titled “Proposal #1: Pineapple Merger Proposal – Interests of Our Directors and Executive Officers in the Pineapple Merger Transaction” beginning on page 61 of this proxy statement/prospectus and the sections titled “CSI EXECUTIVE COMPENSATION” and “PINEAPPLE EXECUTIVE COMPENSATION” beginning on page 161 and page 186, respectively, of this proxy statement/prospectus.

CSI Transactions

In September 2020, CSI repurchased 50,000 of common stock at a price of $3.84 from entities associated with GAMCO, which is the beneficial owner of more 5% of CSI’s common stock. The purchase was done pursuant in a private transaction pursuant to CSI’s stock repurchase program and the purchase price was less than the Nasdaq price on the date of purchase.

The CSI board of directors has adopted governance guidelines that include provisions with respect to conflicts of interest. These guidelines describe “conflict of interest” as a situation in which a director’s personal interest, including an immediate family member interest, is adverse to, or may appear to be adverse to, the interests of CSI. The guidelines provide that any situation that involves, or may reasonably be expected to involve, a conflict of interest with CSI, must be disclosed promptly to the chief executive officer, the chairman, and CSI’s primary legal counsel.

If CSI wishes to proceed with a transaction involving a potential conflict of interest, the CSI board of directors would intend to seek prior approval from the audit and finance committee to ensure the transaction is beneficial to CSI and the terms of the transaction are fair to CSI.

Other than as described above, CSI does not currently have in place any formal policies and/or procedures for the review, approval, or ratification of the types of transactions described in this section of the proxy statement/prospectus, but will consider adopting a formal policy following the merger.

Pineapple Transactions

Hercules-Pineapple Term Loan

On December 11, 2020, Pineapple purchased certain assets from Hercules Technology Management Co V, LLC (“Hercules Management”) that it had acquired in a public auction of assets of HoSoPo Corporation, Solar Spectrum LLC, and Solar Spectrum Holdings, LLC conducted by Hercules Capital, Inc. (“Hercules”). The assets sold by Hercules Management to Pineapple related to the Sungevity business and included tangible assets of consisting of fixed assets and inventory, and intangible assets consisting of the Sungevity trade name, and a database comprised of both historical existing and unconverted customer leads.

On December 11, 2020, Pineapple and Hercules entered into a loan and security agreement for a term loan to Pineapple in the principal amount of $7,500,000 to finance the acquisition of the Sungevity assets from Hercules Management. Pineapple also issued 3,000,000 of its Class A Units to Hercules as partial consideration for the asset purchase, which represents a 15.0% ownership interest in Pineapple.

The term loan is secured by, among other things, the assets purchased by Pineapple. Subject to certain exceptions, the term loan is also secured by Pineapple’s personal property, including without limitation certain receivables,

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equipment, fixtures, intellectual property, inventory, investment property, deposit accounts, cash, and goods, in each case whether now or hereafter owned or existing. In order to establish the security interest in the Pineapple intellectual property collateral, Pineapple and Hercules entered into an intellectual property security agreement dated December 11, 2020.

Subject to certain conditions, borrowings under the loan and security agreement bears interest at 10.00% per annum with interest compounded daily and added to the principle balance quarterly, in arrears. The loan and security agreement contains customary representations and warranties and financial and other covenants and conditions.

Under the loan and security agreement, Hercules is entitled to the highest priority lien on the collateral, including with respect to the payment of $2,000,000 of accounts payable that are or may be owed to Lake Street Solar LLC and $350,000 of accounts payable that are or may be owed to Hercules, each of which is subordinate to the payment of Pineapple’s obligations under the loan and security agreement. Under the loan and security agreement, this aggregate $2,350,000 in payables to Pineapple members may only be repaid under certain conditions, including the requirement that no obligations are outstanding under the loan and security agreement and that Pineapple or its subsidiaries has closed on an equity transaction generating at least $30 million in proceeds. The loan and security agreement also contains certain customary events of default and, upon the occurrence and during the continuation of an event of default, the secured obligations will bear interest at the non-default rate per annum plus 4.0%.

Pineapple may prepay all or a portion of the outstanding term loan by paying the entire principal balance (or such portion thereof) and all accrued and unpaid interest thereon, in each case without a prepayment premium or fee. Pineapple must prepay all of the outstanding term loan if Pineapple closes on one or more sales of equity (or another form of equity financing) that generates proceeds of at least $25 million in the aggregate or if there is a change in control of Pineapple.

The proceeds of the term loan may be used by Pineapple solely to pay related fees and expenses in connection with the loan and security agreement and to purchase the assets described above.

The entire term loan principal balance and all accrued but unpaid interest is due and payable on December 10, 2023.

 

Hercules-Pineapple Working Capital Loan

On January 8, 2021, Pineapple and Hercules, as agent for itself and the lenders, entered into a working capital loan and security agreement (the “WC Loan Agreement”) whereby the lenders agreed to make available to Pineapple a working capital loan in the original principal amount of $500,000, subject to the terms and conditions in the WC Loan Agreement. The lenders, Hercules and Northern Pacific Growth Investment Advisors, LLC, made working capital loan commitments of $400,000 and $100,000, respectively.  Northern Pacific Growth Investment Advisors, LLC is an affiliate of Northern Pacific Group, which controls Lake Street Solar, LLC, a member of Pineapple.

Borrowings under the WC Loan Agreement bear interest at 10.00% per annum with interest compounded daily. The WC Loan Agreement also contains certain customary representations and warranties and covenants and conditions, including covenants to perfect and give the highest priority lien on the collateral securing the working capital loan.

Under the WC Loan agreement, Hercules is entitled to the highest priority lien on the collateral, including with respect to the payment of $2,000,000 of accounts payable that are or may be owed to Lake Street Solar LLC and $350,000 of accounts payable that are or may be owed to Hercules, each of which is subordinate to the payment of Pineapple’s obligations under the loan and security agreement. Under the loan and security agreement, this aggregate $2,350,000 in payables to Pineapple members may only be repaid under certain conditions, including the requirement that no obligations are outstanding under WC Loan agreement.

The collateral for the working capital loan includes, among other things, all assets and all personal property of Pineapple. The WC Loan Agreement also contains certain customary events of default and, upon the occurrence and during the continuation of an event of default, the secured obligations will bear interest at the non-default rate per annum plus 4.0%.

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Pineapple may prepay all or a portion of the outstanding working capital loan by paying the entire principal balance (or such portion thereof) and all accrued and unpaid interest thereon, in each case without a prepayment premium or fee. Pineapple must prepay all of the outstanding working capital loan if there is a change in control of Pineapple.

The proceeds of the working capital loan will be used by Pineapple solely to pay related fees and expenses in connection with the WC Loan Agreement and for general working capital purposes of Pineapple. However, the working capital loan proceeds may not be paid or distributed to any direct or indirect equity owner of Pineapple, or used to pay all or a portion of (i) any fees to board members; (ii) payables, fees (including management fees), loans or other amounts due to Northern Pacific Growth Investment Advisors, LLC or Northern Pacific Holdings, LLC or any of their respective officers, directors, members, managers, subsidiaries, or affiliates.

If a Qualified PIPE Transaction occurs on or prior to the maturity date of January 7, 2022, then the outstanding principal amount of the working capital loan held by Hercules, and all accrued and unpaid interest, will automatically convert into PIPE Transaction Equity issued in such Qualified PIPE Transaction at a price equal to the lowest price per unit paid by the other purchasers of the Qualified PIPE Transaction Equity. Additionally, if Pineapple issues and sells PIPE Transaction Equity that does not constitute a Qualified PIPE Transaction prior to the maturity date of January 7, 2022 and the automatic conversion of the Hercules working capital loan as described above, then Hercules has the option to convert its working capital loan into PIPE Transaction Equity issued in the non-Qualified PIPE Transaction at a price equal to the lowest price per unit paid by the other purchasers of the PIPE Transaction Equity. In the case of either a mandatory or optional conversion of the Hercules working capital loan, the working capital loan by Northern Pacific Growth Investment Advisors, LLC, including all accrued and unpaid interest, will be immediately due and payable.

The term Qualified PIPE Transaction means a PIPE Transaction that generates proceeds to Pineapple of at least $20 million in the aggregate. PIPE Transaction means the offer and sale of equity securities and/or securities exercisable or exchangeable into or for equity securities in a transaction exempt from registration under the Securities Act of 1933, as amended, by an issuer with a class of securities registered or otherwise publicly traded or contemplated to be publicly traded, whether by merger, reverse merger or otherwise.

The entire working capital loan principal balance and all accrued but unpaid interest is due and payable on January 7, 2022.

Lake Street Solar and Hercules Payables

Pineapple has accrued a payable of $2,000,000 to Lake Street Solar, LLC, a member of Pineapple, and a payable of $350,000 to Hercules, another member of Pineapple, relating to the Sungevity asset acquisition described above. These payables have been expensed by Pineapple as acquisition-related costs. Under the loan and security agreement and the WC Loan Agreement, this aggregate $2,350,000 in payables to members is subordinated to the payment to Hercules as the lender under the loan and security agreement and is subordinated to the payment to the lenders under the WC Loan Agreement.  Under the loan and security agreement, the $2,350,000 in payables to members may only be repaid under certain conditions, including the requirement that no obligations are outstanding under the loan and security agreement and that Pineapple or its subsidiaries has closed on an equity transaction generating at least $30 million in proceeds.

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DESCRIPTION OF CSI CAPITAL STOCK

The following summary of the general terms and provisions of CSI capital stock does not purport to be complete and is based upon and qualified by reference to the CSI articles of incorporation and bylaws. We encourage you to read the CSI articles of incorporation, the CSI bylaws and the applicable provisions of the Minnesota Business Corporation Act, or MBCA, for additional information.

Authorized Shares of Capital Stock

The aggregate number of shares of capital stock that the Company has authority to issue is as follows:

 

30,000,000 shares of common stock, par value $.05; and

 

 

3,000,000 shares of preferred stock, $1.00 par value.

 

Preferred Stock

We have no preferred stock outstanding. Under the CSI articles of incorporation, the CSI board of directors is authorized to establish more than one class or series of shares from the 3,000,000 shares of preferred stock authorized and to fix the relative rights and preferences of any such different classes or series, without shareholder approval.

Our board of directors could authorize the issuance of additional shares of preferred stock with terms and conditions that could have the effect of discouraging a takeover or other transaction that might involve a premium price for holders of the shares of common stock or otherwise discourage a transaction that holders of common stock might believe to be in their best interests.

If our shareholders approve Proposal #3: PIPE Issuance Proposal and the PIPE Offering is consummated, we will fix the rights, preferences, restrictions and other matters relating to a series of up to 32,000 shares of our preferred stock to be designated as Series A convertible preferred stock and issue shares of the Series A convertible preferred stock to the PIPE Investors on the terms described in the securities purchase agreement. 

The following is a summary of the Series A convertible preferred stock based on the form of certificate of designation attached as an exhibit to the securities purchase agreement for the PIPE Offering.

Generally, holders of the Series A convertible preferred stock are not entitled to voting rights. However, as long as any shares of Series A convertible preferred stock are outstanding, CSI may not, without the affirmative vote of the Required Holders:

 

alter or change adversely the powers, preferences or rights given to the Series A convertible preferred stock or alter or amend the Certificate of Designation that designates the Series A convertible preferred stock,

 

 

authorize or create any class of stock ranking as to redemption senior to the Series A convertible preferred stock,

 

 

amend CSI’s articles of incorporation or other charter documents in any manner that adversely affects any rights of the holders of Series A convertible preferred stock,

 

 

increase the number of authorized shares of Series A convertible preferred stock, or

 

 

enter into any agreement with respect to any of the foregoing.

 

Each share of Series A convertible preferred stock will be convertible, at any time after issuance and at the option of the holder, into a number of shares of CSI common stock determined by dividing the “Stated Value” of such share by the “Conversion Price.” The Stated Value per share of Series A convertible preferred stock is $1,000 and the Conversion Price per share of Series A convertible preferred stock is $3.40, subject to adjustment. The shares of CSI common stock issuable upon conversion of the Series A convertible preferred stock are referred to as the “conversion shares.”

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The conversion price is subject to adjustment if, at any time while the Series A convertible preferred stock is outstanding, CSI issues, sells, publicly announces the contemplated issuance or sale of, or is deemed to have issued or sold, any shares of CSI common stock or common stock equivalents for an effective price per share that is lower than the then conversion price, subject to limited exceptions for exempt issuances. In the case of any such dilutive issuance, the conversion price then in effect will be reduced to an amount equal to the lesser of the effective price per share in such dilutive issuance and the lowest volume weighted average price (VWAP) of the CSI common stock on any trading day during the 5 trading days immediately following the public announcement of the execution of the dilutive issuance. If CSI enters into a Variable Rate Transaction, despite the prohibition set forth in the securities purchase agreement, CSI will be deemed to have issued common stock or common stock equivalents at the lowest possible price, conversion price or exercise price at which such securities may be issued, converted or exercised.

CSI will not effect any conversion of the Series A convertible preferred stock, and a holder will not have the right to convert any portion of the Series A convertible preferred stock, to the extent that, after giving effect to the conversion, such holder together with such holder’s affiliates and other attribution parties would beneficially own in excess of the beneficial ownership limitation. The beneficial ownership limitation is 4.99% (or, upon election by a holder prior to the issuance of any Series A convertible preferred stock, 9.99%) of the number of shares of the CSI common stock outstanding immediately after giving effect to the issuance of shares of CSI common stock issuable upon conversion of the Series A convertible preferred stock held by the applicable holder. A holder, upon notice to CSI, may increase or decrease its applicable beneficial ownership limitation provided that the beneficial ownership limitation in no event exceeds 9.99% of the number of shares of the CSI common stock outstanding immediately after giving effect to the issuance of shares of CSI common stock upon conversion of Series A convertible preferred stock held by the holder. Any increase in the beneficial ownership limitation will not be effective until the 61st day after such notice is delivered to CSI and will only apply to the holder giving the notice and no other holder.

If CSI fails to deliver to the conversion shares by the required delivery date and shares of CSI common stock are purchased to deliver in satisfaction of a sale by such converting holder of the conversion shares, CSI will have an obligation to make a cash payment and, that the converting holder’s option, to issue shares to that holder. The cash obligation will be equal to the amount, if any, by which (x) such holder’s total purchase price (including any brokerage commissions) for the CSI common stock so purchased exceeds (y) the product of (1) the aggregate number of shares of CSI common stock that such holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions). If the converting holder requires CSI to issue shares, then CSI must either reissue (if surrendered) the shares of Series A convertible preferred stock equal to the number of shares of Series A convertible preferred stock submitted for conversion (in which case, such conversion will be deemed rescinded) or deliver to such holder the number of shares of CSI common stock that would have been issued if CSI had timely complied with its delivery requirements.

If after the 10th trading day following the effective date of the registration statement for the conversion shares, the volume weighted average price (VWAP) for each trading day during any 10 consecutive trading day period exceeds 200% of the then effective conversion price and the daily dollar trading volume for the CSI common stock exceeds $5 million on each trading day during this period, CSI may require each holder to convert all or part of such holder’s Series A convertible preferred stock plus all accrued but unpaid dividends thereon and all liquidated damages and other amounts due in respect of the Series A convertible preferred stock. For any shares of Series A convertible preferred stock that remain unconverted and outstanding because of the beneficial ownership limitation, CSI may elect to repurchase all or a portion of such unconverted shares from each such holder at a price per unconverted share of Series A convertible preferred stock equal to the quotient obtained by dividing the stated value by the then-current conversion price and then multiplying such quotient by the greater of (i) the closing sale price of the common stock on the date of the forced conversion and (ii) the closing sale price of the common stock as of the trading day immediately prior to the date of the notice of repurchase.

If there is any Fundamental Transaction while the Series A convertible preferred stock is outstanding, then, upon any subsequent conversion of the Series A convertible preferred stock, the holder will have the right to receive, for each conversion share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any beneficial ownership limitation), the number of shares of common stock of the successor or acquiring corporation or of CSI, if it is the surviving corporation, and any

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additional consideration receivable as a result of such Fundamental Transaction by a holder of the number of shares of CSI common stock for which the Series A convertible preferred stock is convertible immediately prior to such Fundamental Transaction (without regard to any beneficial ownership limitation). CSI must cause any successor entity in a Fundamental Transaction in which CSI is not the survivor to assume in writing all of the obligations of CSI under the Certificate of Designation and the other PIPE Offering transaction documents. The Certificate of Designation provides that the consummation of the transactions contemplated by the merger agreement will not be deemed a Fundamental Transaction. The term Fundamental Transaction has substantially the same meaning as in the warrant to be issued in the PIPE Offering. For a summary of the warrant, the securities purchase agreement or other PIPE Offering agreements, see “AGREEMENTS RELATING TO THE MERGER – PIPE Offering Agreements” beginning on page 150 of this proxy statement/prospectus.

Common Stock

Holders of the Company’s common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the shareholders and do not have cumulative voting rights. Except as otherwise provided by law, the CSI articles of incorporation or the CSI bylaws, matters will generally be decided by the vote of the holders of a majority of the voting power present in person (which includes attendance by means of remote communication) or represented by proxy. Our bylaws provide that the authorized number of directors will be fixed by the shareholders at each annual meeting and that either the shareholders or the board of directors may increase or decreases the number of directors. Our board of directors is not classified.

Holders of our common stock are entitled to receive dividends declared by our board of directors out of funds legally available for the payment of dividends. In the event of any liquidation, dissolution or winding-up of our affairs, holders of common stock will be entitled to share ratably in our assets that are remaining after payment or provision for payment of all of our debts and obligations.

Holders of common stock have no preemptive, conversion or subscription rights, and there are no redemption provisions applicable to the common stock.

All outstanding shares of our common stock are fully paid and nonassessable.

The transfer agent and registrar for our common stock is Equiniti Trust Company, 1110 Centre Pointe Curve, Suite 101, South St. Paul, Minnesota 55120-4100.

Our common stock is currently listed on The Nasdaq Stock Market LLC under the trading symbol “JCS.”

Anti-Takeover Effects of Provisions of the CSI Articles of Incorporation, the CSI Bylaws and Minnesota Law

Specific provisions of Minnesota law, the CSI articles of incorporation and the CSI bylaws may be deemed to have an anti-takeover effect.

CSI’s bylaws establish an advance notice procedure with regard to (i) certain business to be brought before an annual meeting of shareholders of CSI and (ii) the nomination by shareholders of candidates for election as directors.

Properly Brought Business

The CSI bylaws provide that at the annual meeting only such business may be conducted as is of a nature that is appropriate for consideration at an annual meeting and has been either specified in the notice of the meeting, otherwise properly brought before the meeting by or at the direction of the CSI board of directors, or otherwise properly brought before the meeting by a shareholder who has given timely written notice to the Secretary of the Company of the shareholder’s intention to bring the business before the meeting. To be timely, the notice must be given by such shareholder to the Secretary of the Company not less than 45 days or more than 75 days prior to a meeting date corresponding to the previous year’s annual meeting. Notice relating to the conduct of such business at an annual meeting must contain certain information as described in Section 2.9 of the CSI bylaws, which are available for inspection by shareholders at the Company’s principal executive offices pursuant to Section 302A.441,

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subd. 4 of the Minnesota Statutes. Nothing in the CSI bylaws precludes discussion by any shareholder of any business properly brought before the annual meeting in accordance with the CSI bylaws.

Shareholder Nominations

The CSI bylaws provide that a notice of proposed shareholder nominations for the election of directors must be timely given in writing to the Secretary of the Company prior to the meeting at which directors are to be elected. To be timely, the notice must be given by the shareholder to the Secretary of the Company not less than 45 days or more than 75 days prior to a meeting date corresponding to the previous year’s annual meeting. The notice to the Company from a shareholder who intends to nominate a person at the meeting for election as a director must contain certain information as described in Section 3.7 of the CSI bylaws, which are available for inspection by shareholders as described above. If the presiding officer of a meeting of shareholders determines that a person was not nominated in accordance with the foregoing procedure, that person will not be eligible for election as a director.

Shareholder Meetings

Under the CSI bylaws, regular meetings of our shareholders may be called only by our board of directors, or by written consent of all the shareholders entitled to vote at the annual meeting. If the board fails to designate a time for a regular meeting for any consecutive period of 15 months, the board must cause such regular meeting to be called within 90 days of receipt of the written demand of any shareholder owning one percent or more of all voting shares of the corporation

Under our bylaws, special meetings of our shareholders may be called by the chief executive officer, the chief financial officer, any two or more directors, or upon request by shareholders holding ten percent or more of the voting power of the shareholders.

Voting Percentage Approval Required for Designated Action

In addition to any affirmative vote required by law or CSI’s articles of incorporation, the following actions require the affirmative vote of not less than two-thirds of the votes entitled to be cast by the holders of all then outstanding shares of voting stock, voting together as a single class:

(a) any sale, lease, mortgage, pledge, transfer, exchange or other disposition of all or substantially all of the property and assets of the corporation to any person;

(b) any reclassification of securities (including any combination of shares or reverse stock split), or recapitalization or reorganization of the corporation, or any merger, consolidation or statutory exchange of shares of the corporation or any subsidiary with any other corporation (other than a merger of a wholly owned subsidiary of the corporation into the corporation or the merger of two or more wholly owned subsidiaries of the corporation;

(c) the adoption of plan or proposal for the liquidation or dissolution of the corporation; and

(d) any agreement, contract or other arrangement or understanding providing for one or more of the foregoing.

In addition to any affirmative vote required by law or the CSI articles of incorporation, a Business Combination (as defined in the articles of incorporation) requires the affirmative vote of not less than 80% of the votes entitled to be cast by the holders of all then outstanding shares of voting stock, voting together as a single class. This requirement is not applicable, however, if the particular Business Combination is either (a) approved by a majority of the Continuing Directors (as defined in the CSI articles of incorporation), or (b) meets specific requirements with respect to price and approval process. Repeal or amendment of this requirement in the CSI articles of incorporation requires affirmative vote of not less than 80% of the votes entitled to be cast by the holders of all then outstanding shares of voting stock, voting together as a single class.

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Provisions of Minnesota Law

The following provisions of the MBCA may have an effect of delaying, deterring or preventing an unsolicited takeover of the Company or make an unsolicited takeover of the Company more difficult.

 

MBCA Section 302A.553 Power to acquire shares subd 3, limitation on share purchases prohibits a publicly held corporation such as CSI from purchasing shares entitled to vote for more than market value from a person that beneficially owns more than 5% of the voting power of the corporation if the shares have been beneficially owned for less than two years unless the purchase or agreement to purchase is approved at a meeting of shareholders by the affirmative vote of the holders of a majority of the voting power of all shares entitled to vote or the corporation makes an offer, of at least equal value per share, to all shareholders for all other shares of that class or series and any other class or series into which they may be converted.

 

 

MBCA Section 302A.671 Control share acquisitions provides that shares of an “issuing public corporation,” such as CSI, acquired by an “acquiring person” in a “control share acquisition” that exceed the threshold of voting power of any of the three ranges identified below will not have voting rights, unless the issuing public company’s shareholders vote to accord these shares the voting rights normally associated with these shares. A “control share acquisition” is an acquisition, directly or indirectly, by an “acquiring person” (as defined in the MBCA) of beneficial ownership of shares of an issuing public corporation that, but for Section 302A.671, would, when added to all other shares of the issuing public corporation beneficially owned by the acquiring person, entitle the acquiring person, immediately after the acquisition, to exercise or direct the exercise of a new range of voting power of the issuing public corporation with any of the following three ranges: (i) at least 20 percent but less than 33-1/3 percent; (ii) at least 33-1/3 percent but less than or equal to 50 percent; and (iii) over 50 percent. The issuing public company also has an option to call for redemption all, but not less than all, shares acquired in the control share acquisition that exceed the threshold of voting power of any of the specified ranges at a price equal to the fair market value of the shares at the time the call is given if (i) the acquiring person fails to deliver the information statement to the issuing public company by the tenth day after the control share acquisition; or (ii) shareholders have voted not to accord voting rights to the shares acquired in the control share acquisition.

 

 

MBCA Section 302A.673 Business combinations prohibits a public Minnesota corporation, such as CSI, from engaging in a business combination with an interested shareholder for a period of four years after the date of the transaction in which the person became an interested shareholder, unless either (i) the business combination or (ii) the acquisition by which the person becomes an interested shareholder is approved in a prescribed manner before the person became an interested shareholder. The term “business combination” includes mergers, asset sales and other transactions resulting in a financial benefit to the interested shareholder. An “interested shareholder” is a person who is the beneficial owner, directly or indirectly, of 10% or more of a corporation’s voting stock, or who is an affiliate or associate of the corporation, and who, at any time within four years before the date in question, was the beneficial owner, directly or indirectly, of 10% or more of the corporation’s outstanding voting stock.

 

 

If a takeover offer is made for our stock, MBCA Section 302A.675 Takeover offer; fair price precludes the offeror from acquiring additional shares of stock (including in acquisitions pursuant to mergers, consolidations or statutory share exchanges) within two years following the completion of the takeover offer, unless shareholders selling their shares in the later acquisition are given the opportunity to sell their shares on terms that are substantially the same as those contained in the earlier takeover offer. A “takeover offer” is a tender offer that results in an offeror who owned ten percent or less of a class of our shares acquiring more than ten percent of that class, or that results in the offeror increasing its beneficial ownership of a class of our shares by more than ten percent of the class, if the offeror owned ten percent or more of the class before the takeover offer. Section 302A.675 does not apply if a committee of our board of directors formed in accordance with Section 302A.675 approves the proposed acquisition before any shares are acquired pursuant to the earlier tender offer.

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COMPARISON OF RIGHTS OF CSI SHAREHOLDERS AND PINEAPPLE MEMBERS

If the merger is completed, members of Pineapple will become shareholders of Communications Systems. Communications Systems is a Minnesota corporation, and Pineapple is a Delaware limited liability company. Ownership interests in a limited liability company are fundamentally different from ownership interests in a corporation.

The rights of CSI shareholders are governed by CSI’s restated articles of incorporation, effective as of June 12, 2014, the restated bylaws of CSI, as amended through April 10, 2020, and the Minnesota Business Corporation Act (“MBCA”). The restated articles of incorporation and the restated bylaws are collectively referred to as the “CSI organizational documents.” The rights of Pineapple members are governed by the Second Amended and Restated Limited Liability Company Agreement, effective as of December 1, 2020 (the “LLC Agreement”), and the Delaware Limited Liability Company Act (the “DLLCA”).

If the merger is completed, the rights of Pineapple members as CSI shareholders following the issuance of CSI common stock in the merger will be governed by the CSI organizational documents and the MBCA. There are many differences between the rights of Pineapple members and CSI shareholders. Some of these, such as distribution/dividend rights and voting rights, are significant. The following description summarizes the material differences between the rights of CSI shareholders and Pineapple members but does not purport to be a complete statement of all those differences or a complete description of the specific provisions referred to in this summary. The identification of specific differences is not intended to indicate that other equally significant or more significant differences do not exist. Pineapple members should carefully read the relevant provisions of the CSI organizational documents, and the LLC Agreement. Copies of the documents referred to in this summary may be obtained as described under “WHERE YOU CAN FIND MORE INFORMATION.” This summary is qualified in its entirety by reference to the MBCA, the DLLCA, the CSI organizational documents and the LLC Agreement. Capitalized terms used herein and not otherwise defined herein are used as defined in the CSI organizational documents and the LLC Agreement, as applicable.

Purpose and Term of Existence

CSI

 

Pineapple

 

 

 

CSI’s stated purpose is general business purposes and the
duration of its existence is perpetual.

Pineapple’s stated purpose under the LLC Agreement is to conduct any lawful business or purpose and to engage in any lawful act or activity for which limited liability companies may be organized under the DLLCA, including the acquisition, holding, management, transfer or sale of any assets. Pineapple may engage in any and all activities necessary, desirable, or incidental to the accomplishment of the foregoing purpose.

Authorized and Issued Capital

CSI

 

Pineapple

 

CSI’s authorized capital stock consists of 30,000,000 shares of CSI common stock, $0.05 par value per share, and 3,000,000 shares of preferred stock, $1.00 par value per share. As of                , 2021, there were 9,720,627 shares of CSI common stock issued and outstanding and no shares of preferred stock designated, issued or outstanding.

The LLC Agreement authorizes Pineapple to issue the following Units: (i) an unlimited number of Class A Units; (ii) 6,250,000 Class B Units; (iii) 5,000,000 Class C Units; and (iv) an unlimited number of Class P Units. The Pineapple board of managers may issue additional Units for any purpose at any time and from time to time for such consideration and on such terms and conditions as the Pineapple board of managers

 

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CSI

 

Pineapple

 

 

shall determine, all without the approval of any Pineapple members and subject to certain preemptive rights described in the LLC Agreement and the right of one member to approve issuances of new Units with rights that are senior to the Class A Units. The Pineapple board of managers has authority to increase the number of Units, the number of Units in a class of Units or designate one or more new classes of Units, subject to the right of one member to approve issuances of new Units with rights that are senior to the Class A Units

 

As of                , 2021, Pineapple had outstanding 19,150,000 Class A Units and 850,000 Class P Units. Pursuant to the terms of the asset purchase agreement among Pineapple, Hawaii Energy Connection, LLC, E-Gear, LLC and Steven Godmere, Pineapple has agreed to issue 6,250,000 Class B Units to the members of HEC and E-Gear upon closing of the transactions contemplated thereby. 

 

CSI Dividends; Pineapple Distributions

CSI

 

Pineapple

 

 

 

Subject to the rights of holders of preferred stock, if any, holders of our common stock are entitled to receive dividends declared by our board of directors out of funds legally available for the payment of dividends. In the event of any liquidation, dissolution or winding-up of our affairs, holders of common stock will be entitled to share ratably in our assets that are remaining after payment or provision for payment of all of our debts and obligations, subject to the rights of holders of preferred stock, if any.

Distributions of Net Cash Flow. Net Cash Flow will be distributed at such times as determined by the Pineapple board of managers. All distributions of Net Cash Flow shall be made, first, to holders of Class B Units and Class C Units, pro rata in proportion to their respective liquidation values, and thereafter, to the holders of Class A Units and Class P Units pro rata based on their respective percentage ownership of the outstanding Class A Units and Class P Units. Net Cash Flow” is defined in the LLC Agreement and generally means, for any applicable measurement period, gross revenues from all sources, less all operating expenditures. Net Cash Flow will not include unexpended capital contributions or loan proceeds unless determined by the Pineapple board of managers.

 

Distributions of Cash Upon Liquidation. If Pineapple dissolves in accordance with the LLC Agreement, all proceeds of the liquidation will be distributed in accordance with the terms and conditions of the liquidation procedures set forth in the LLC Agreement.

 

Pineapple will first apply the proceeds of liquidation to payments of all debts and expenses of Pineapple and purchasing insurance policies for contingent liabilities or obligations of Pineapple. Pineapple will distribute

 

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Pineapple

 

 

any remaining proceeds to the unitholders in accordance with the provisions for distributing Net Cash Flow. 

 

Merger, Consolidation and Certain Other Transactions; Business Combination Statutes

CSI

 

Pineapple

 

 

 

 

 

 

 

Subject to limited exceptions, under the MBCA, the consummation of a merger or consolidation of CSI requires the CSI board of directors to approve and declare advisable the agreement of merger or consolidation and requires that the agreement of merger or consolidation be adopted by the affirmative vote of a majority of all shareholders entitled to vote entitled to vote thereon at an annual or special meeting. Notice of the shareholders’ meeting must be given to all holders of both voting and non-voting stock not less than 14 days and not more than 60 days before the meeting.

 

Under the MBCA, CSI is prohibited from engaging in a “business combination” with a shareholder who owns 10% or more of CSI’s voting stock (an interested shareholder) for four years following the time that such shareholder becomes an interested shareholder, unless the business combination or the acquisition of shares made by the interested shareholder on the interested shareholder’s share acquisition date is approved before the interested shareholder’s share acquisition date, or on the share acquisition date but prior to the interested shareholder’s becoming an interested shareholder on the share acquisition date, by a committee of the board of the issuing public corporation. The committee must be composed solely of one or more disinterested directors.

 

Generally, Article IX of the CSI restated articles of incorporation provides that any Business Combination will require the affirmative vote of not less than 80% of the votes entitled to be cast by the holders of all then outstanding shares of CSI voting stock, voting together as a single class. This vote is required notwithstanding the fact that no vote may be required, or that a lesser percentage or separate class vote may be specified, by law or by any other provision of the CSI articles of incorporation or in any agreement with any national securities exchange or otherwise. This vote also is in addition to any affirmative vote required by law or the CSI articles of incorporation.

 

 

 

Merger or consolidation of Pineapple requires the consent of the Pineapple board of managers. The Pineapple board of managers must also approve the merger agreement or plan of consolidation. After approval by the Pineapple board of managers, the Pineapple board of managers shall direct that the merger agreement or plan of consolidation be submitted to a vote of the Pineapple members, and the merger agreement or plan of consolidation will be approved upon receipt of the affirmative vote or written consent of members who own more than 50% of the then current interest in the profits of Pineapple, voting as a single class unless the merger agreement or plan of conversion effects an amendment to any provisions of the LLC Agreement that, if contained in an amendment to the LLC Agreement, would require for its approval the vote or consent of any Pineapple member or of a majority of a class of Units, in which case the approval of such member or holders of a majority of a class of Units will be required for approval of the merger agreement or plan of consolidation. 

 

 

 

 

 

212 

 

 

CSI 

 

Pineapple 

 

 

In addition to any affirmative vote required by law or by CSI’s restated articles, the following require the affirmative vote of not less than two-thirds of the votes entitled to be cast by the holders of all then outstanding shares of CSI voting stock, voting together as a single class: (a) any sale, lease, mortgage, pledge, transfer, exchange or other disposition of all or substantially all of the property and assets of CSI to any person; (b) any reclassification of CSI securities (including any combination of shares or reverse stock split), or recapitalization or reorganization of the corporation, or any merger, consolidation or statutory exchange of shares of CSI or any subsidiary of CSI with any other corporation (other than a merger of a wholly owned CSI subsidiary into CSI or the merger of two or more wholly owned subsidiaries of CSI; (c) the adoption of plan or proposal for the liquidation or dissolution of CSI; and (d) any agreement, contract or other arrangement or understanding providing for one or more of the foregoing.

 

 

Management by Board of Directors / Board of Managers

CSI

 

Pineapple

 

 

 

In accordance with the MBCA, CSI’s business and affairs are managed by or under the direction of the CSI board of directors.

 

The CSI restated articles of incorporation require that the number of directors on the CSI board of directors will be no less than three or more than twelve directors the exact number of directors to be fixed from time to time by or pursuant to the CSI bylaws.

 

As of the date of this proxy statement/prospectus, the CSI board of directors consists of six directors.

The Pineapple board of managers manages all activities of Pineapple. The Pineapple board of managers consists of the number of managers as is established by the Pineapple board of managers. Except as expressly provided in the LLC Agreement, all management powers over the business and affairs of Pineapple are exclusively vested in the Pineapple board of managers, and no Pineapple member shall take part in the management or control of Pineapple of any of its subsidiaries’ business or affairs. 

 

Nomination and Election of Directors / Managers

CSI

Pineapple

 

 

Nominations for the election of directors may be made by the CSI board of directors or a committee appointed by the CSI board of directors or by any shareholder entitled to vote generally in the election of directors. Any shareholder entitled to vote generally in the election of directors may nominate one or more persons for election as directors at a meeting only if written notice of such shareholder’s intent to make such nomination has been timely given to the secretary of CSI and such written notice sets forth the

Pineapple members have no right to elect the Pineapple board of managers. All managers are appointed by Lake Street Solar, LLC (“Lake Street”).

 

213 

 

 

information required by CSI’s restated bylaws.

 

 

Removal of Directors; Removal of Managers

CSI

Pineapple

 

 

Any director may be removed from office, with or without cause, only by the affirmative vote of the holders of at least 80% of the voting power of the then outstanding shares of CSI capital stock entitled to vote generally in the election of directors.

Any member of the Pineapple board of managers may be removed with or without cause at any time by Lake Street. A manager may resign at any time by delivering written notice to Pineapple.

 

Filling Vacancies on the Board

CSI

Pineapple

 

 

Under the CSI bylaws, any vacancies occurring in the CSI board of directors for any reason, and any newly created directorships resulting from an increase in the number of directors, may be filled by a majority of the directors then in office. Any directors so chosen will hold office until the next election of the class for which such directors shall have been chosen and until their successors is elected and qualified, subject, however, to prior retirement, resignation, death or removal from office. Any newly created directorships resulting from an increase in the authorized number of directors shall be apportioned by the CSI board of directors among the three classes of directors so as to maintain such classes as nearly equal in number as possible.

Any vacancy on the Pineapple board of managers shall be filled by Lake Street. 

 

 

Limited Call Rights

CSI

 

Pineapple

 

Not applicable.

If at any time the Pineapple board of managers and its affiliates hold more than 80% of the total Pineapple member Interests of any class, the Pineapple board of managers will have the right, which it may assign or transfer in whole or in part to the Pineapple board of managers’ affiliates or to Pineapple, exercisable at the Pineapple board of manager’s option, to purchase all, but not less than all, of such Pineapple member Interests of that class then Outstanding that are held by persons other than the Pineapple board of managers and its affiliates, at the greater of (1) the Current Market Price as of the date three business days prior to the date that the notice is mailed to the Pineapple members as provided in the LLC Agreement and (2) the highest price paid by the Pineapple board of managers or any of its affiliates for any Pineapple member Interest of the class purchased within the 90 days preceding the date the Pineapple board of

 

214 

 

 

CSI

 

Pineapple

 

 

 

 

managers mails notice of its election to purchase the units.

 

Amendment of Governing Documents

CSI

Pineapple

Articles of Incorporation. The CSI articles of incorporation may be amended, altered, changed or repealed by the affirmative vote of the holders of at least a majority of the voting power of all shares of CSI capital stock entitled to vote generally in the election of directors, or such greater percentage as may otherwise be prescribed by Minnesota law.

 

However, the affirmative vote of the holders of at least two-thirds of the voting power of all shares of CSI capital stock entitled to vote generally in the election of directors is required to alter, amend, repeal or adopt any provision inconsistent with Section 3 of Article IX of the CSI restated articles of incorporation and the affirmative vote of the holders of at least 80% of the voting power of all shares of CSI capital stock entitled to vote generally in the election of directors is required to alter, amend, repeal or adopt any provision inconsistent with the remaining sections of Article IX of the CSI restated articles of incorporation. 

 

Additionally, the CSI restated articles of incorporation require the affirmative vote of the holders of at least 80% of the votes entitled to be cast by the holders of all shares of CSI entitled to vote generally in the election of directors, voting together as a single class, or the affirmative vote of a majority of the entire CSI board of directors with the concurring vote of a majority of the continuing directors, voting separately and as a subclass of directors, to alter, amend or repeal, or adopt any bylaw provision inconsistent with any bylaw relating to procedures for advance notice of nominations for election to the CSI board of directors (other than by the CSI board of directors or committee thereof) or procedures for advance notice of business to be brought before an annual meeting of shareholders of CSI.

 

Bylaws. The CSI organizational documents provide that the bylaws may be altered, amended or repealed or new bylaws enacted by the affirmative vote of a majority of the entire CSI board of directors (if notice of the proposed alteration or amendment is contained in the notice of the meeting at which such vote is taken or if all directors are present) or at any regular meeting of the shareholders (or at any special meeting thereof

.

Amendments to the LLC Agreement are effective only if they receive the approval of the holders of a majority of the Class A Units, Class B Units, Class C Units and Class P Units, voting together as a single class, and the Pineapple board of managers. No amendment that disproportionately and negatively impacts the rights, interests or obligations of any member or a class of Units shall be adopted without the consent of such member or the members holding a majority of the impacted class of Units, and amendments to certain provisions included in the LLC Agreement for the benefit of one member may not be made without the consent of that member.

 

However, in some circumstances, more particularly described in the LLC Agreement, the Pineapple board of managers may make amendments to the LLC Agreement without the approval of the Pineapple members to reflect:

 

●     a change in the name of Pineapple, the location of its principal place of business, its registered agent or its registered office;

 

●     an increase in the number of Units, an increase in the number of Units in a class of Units, or the designation of one or more new classes of Units in certain circumstances; or

 

●      the admission, substitution or withdrawal of partners.

 

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CSI

 

Pineapple

 

 

 

duly called for that purpose) by the affirmative vote of a majority of the shares represented and entitled to vote at such meeting (if notice of the proposed alteration or amendment is contained in the notice of such meeting)

 

For bylaw provisions concerning the procedures for advance notice of nominations for election to the CSI board of directors (other than by the CSI board of directors or committee thereof) or procedures for advance notice to the CSI board of directors of business to be brought before an annual meeting of shareholders of CSI, the affirmative vote of the holders of at least 80% of the votes entitled to be cast by the holders of all CSI shares of entitled to vote generally in the election of directors, voting together as a single class, or the affirmative vote of a majority of the entire CSI board of directors with the concurring vote of a majority of the continuing directors, voting separately and as a subclass of directors, is required to alter, amend or repeal, or adopt the provision.

 

 

Meetings; Voting; Action by Written Consent

CSI

 

Pineapple

 

 

 

Each share of CSI common stock entitles the holder to one vote with respect to each matter presented to CSI shareholders on which the holders of CSI common stock are entitled to vote. CSI shareholders do not have cumulative voting rights.

 

A regular meeting of the shareholders of CSI entitled to vote may be held at the principal office of the corporation or at such other place, within or without the State of Minnesota, as is designated by the CSI board of directors, or by written consent of all the shareholders entitled to vote thereat, at such time or times as may be designated by the CSI board of directors.  Additionally, if the CSI board of directors fails to designate a time for a regular meeting for any consecutive period of 15 months the CSI board of directors must cause such regular meeting to be called within 90 days of receipt of the written demand of any shareholder owning 1% or more of all CSI voting shares.

 

The CSI bylaws provide that special meetings of the shareholders may be called by the chief executive officer, the chief financial officer, any two or more directors, or upon request by shareholders holding 10% or more of the voting power of the shareholders. The CSI bylaws prohibit the conduct of any business at a special meeting other than as brought before the

For all matters presented to the Pineapple members at a meeting at which a quorum is present, other than a matter for which the affirmative vote of the holders of a specified portion of all Units entitled to vote is required by the DLLCA or the LLC Agreement, the affirmative vote of Pineapple members holding a majority of the Units entitled to vote at a meeting of Pineapple members at which a quorum is present shall be the act of the Pineapple members.

 

Meetings of the Pineapple members for any proper purpose or purposes may be called at any time by the Pineapple board of managers or Pineapple members holding a majority of the Units entitled to vote. If not otherwise stated in or fixed in accordance with the remaining provisions of the LLC Agreement, the record date for determining Pineapple members entitled to call a meeting is the date any Pineapple member first signs the notice of that meeting. Only business within the purpose or purposes described in the notice (or waiver thereof) required by the LLC Agreement may be conducted at a meeting of the Pineapple members. Written or printed notice stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than ten nor more than 60 days before the date of the meeting, either personally or by mail, by or at the direction of the Pineapple board of

 

216 

 

 

CSI

 

Pineapple

 

 

meeting pursuant to the notice of meeting. Notice shall be mailed at least 10 but not more than 60 days prior to the date of the meeting.

 

managers or the Pineapple members calling the meeting, to each Pineapple member entitled to vote at such meeting. A quorum shall be present at a meeting of Pineapple members if (i) Hercules Capital, Inc., and (ii) the Pineapple members holding a majority of the Units entitled to vote are represented at the meeting in person or by proxy. With respect to any matter, other than a matter for which the affirmative vote of the holders of a specified portion of all Units entitled to vote is required by the DLLCA or the LLC Agreement, the affirmative vote of Pineapple members holding a majority of the Units entitled to vote at a meeting of Pineapple members at which a quorum is present shall be the act of the Pineapple members.

 

Any action required or permitted to be taken at any meeting of Pineapple members may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the Pineapple member or members holding not less than the minimum percentage of each class of Units that would be necessary to take such action at a meeting at which all Pineapple members entitled to vote on the action were present and voted.

 

Shareholder Proposals and Director Nominations

 

CSI

 

Pineapple

 

 

 

Any shareholder entitled to vote generally in the election of directors may nominate one or more persons for election as directors at a meeting only if written notice of such shareholder’s intent to make such nomination or nominations has been timely given to the secretary of CSI and such written notice sets forth the information required by CSI’s restated bylaws.

 

At the annual meeting, the shareholders shall elect directors of the corporation and shall transact such other business as may properly come before them. To be properly brought before the meeting, business must be of a nature that is appropriate for consideration at an annual meeting and must be (i) specified in the notice of meeting (or any supplement thereto) or at the direction of the CSI board of directors, (ii) otherwise properly brought before the meeting by or at the direction of the CSI board of directors, or (iii) otherwise properly brought before the meeting by a shareholder. In addition to any other applicable requirements, for matters to be properly brought before

Not applicable.

 

217 

 

 

CSI

 

Pineapple

 

 

 

the annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the secretary of CSI and such written notice must set forth the information required by CSI’s restated bylaws.

 

To be timely, each such notice must be given, either by personal delivery or by United States mail, postage prepaid, to the secretary of CSI, not less than 45 days nor more than 75 days prior to a meeting date corresponding to the previous year’s annual meeting.

 

 

Indemnification and Limitation on Liability

CSI

Pineapple

 

 

According to the CSI restated bylaws, CSI must indemnify a person made or threatened to be made 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 the person in connection with the proceeding, if, with respect to the acts or omissions of the person complained of in the proceeding, the person:

 

(1)          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;

 

(2)          acted in good faith;

 

(3)          received no improper personal benefit and Minnesota Statutes, Section 302A.255, if applicable, has been satisfied;

 

(4)          in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and

 

(5)          in the case of acts or omissions occurring in the official capacity, reasonably believed that the conduct was in the best interests of the corporation, or reasonably believed that the conduct was not opposed to the best interests of the corporation. If the person’s

The LLC Agreement provides that certain persons, including members of the Pineapple board of managers, Pineapple members and Pineapple employees, shall not be liable to Pineapple, its subsidiaries or certain other persons, including members of the Pineapple board of managers, Pineapple members and Pineapple employees, for any loss, damage, claim, liability, demand, action, suit, proceeding or right of action incurred by reason of any act or omission performed or omitted by such person in good faith on behalf of Pineapple and in a manner reasonably believed to be within the scope of authority conferred on such person by the LLC Agreement, except that such person shall be liable for any damages incurred by reason of such person’s fraud, gross negligence or willful misconduct or for any damages for which such person has an obligation to indemnify as an act outside the scope of Pineapple.

The LLC Agreement provides that the Company shall indemnify and hold harmless certain persons, including members of the Pineapple board of managers, Pineapple members and Pineapple employees, from any losses, claims, demands, costs, damages, judgements, fines, settlements and other amounts arising from any and all claims, actions or proceedings, in which such person was involved, may be involved or is threatened to be involved, as a party or otherwise, arising out of the business of Pineapple and its subsidiaries, to the fullest extent permitted by the DLLCA and other applicable laws. Notwithstanding the above, Pineapple shall not indemnify a Pineapple member or a member of the Pineapple board of managers for any conduct involving fraud, bad faith, willful or intentional misconduct, or a knowing violation of law. The LLC Agreement also provides for advancement of expenses for proceedings against

 

218 

 

 

CSI

Pineapple

 

 

acts or omissions complained of in the proceeding relate to conduct as a director, officer, trustee, employee, or agent of an employee benefit plan, the conduct is not considered to be opposed to the best interests of the corporation if the person reasonably believed that the conduct was in the best interests of the participants or beneficiaries of the employee benefit plan.

 

CSI’s restated articles of incorporation provide that no CSI director will be personally liable to CSI or its shareholders for monetary damages for a breach of fiduciary duty as a director. However, CSI’s restated articles of incorporation do not limit or eliminate the liability of a director to the extent provided by applicable law (i) for breach of the director’s duty of loyalty to CSI or its shareholders; (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; (iii) for violations of sections 302A.559 of the Minnesota Statutes (relating to illegal distributions) or 80A.23 of the Minnesota Statutes (since repealed relating to civil violations of Minnesota securities laws); (iv) for any transaction from which the director derived any improper personal benefit; or (v) for any act or omission occurring prior to the date when this provision becomes effective.

any such person. Further, the LLC Agreement allows Pineapple to purchase and maintain insurance on behalf of the Pineapple board of managers, its affiliates, its employees and any person designated by the Pineapple board of managers to protect against any liability incurred by such person in connection with Pineapple’s activities or such person’s activities on behalf of Pineapple, regardless of whether Pineapple would have the power to indemnify such person against such liability under the LLC Agreement.

 

Exclusive Forum

CSI

 

Pineapple

 

 

 

Not applicable.

The LLC Agreement provides that any claims, suits, actions or proceedings (A) arising out of or relating in any way to the LLC Agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of the LLC Agreement or the duties, obligations or liabilities among the Partners or of Partners to Pineapple, or the rights or powers of, or restrictions on, the Partners or Pineapple), (B) brought in a derivative manner on behalf of Pineapple, (C) asserting a claim of breach of a duty (including any fiduciary duty) owed by any director, officer or other employee of Pineapple or the Pineapple board of managers, or owed by the Pineapple board of managers, to Pineapple or the Partners, (D) asserting a claim arising pursuant to any provision of the DLLCA or (E) asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the Court of Chancery of the State of Delaware, in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise,

 

219 

 

 

CSI

 

Pineapple

 

 

 

 

are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims. However, if the Court of Chancery of the State of Delaware does not have subject matter jurisdiction over the action, the action may be brought in any other court in the State of Delaware having subject matter jurisdiction.

 

Conflicts of Interest; Fiduciary Duties

CSI

 

Pineapple

 

 

 

 

 

 

 

CSI’s directors owe certain fiduciary duties to CSI shareholders. Under the MBCA, directors must discharge the position’s duties in good faith, in a manner that the director reasonably believes is in the corporation’s best interests and directors must discharge the position’s duties with the care that an ordinarily prudent person in a similar position would do under similar circumstances.

The LLC Agreement contains provisions replacing the fiduciary duties that would otherwise be owed by the Pineapple board of managers with contractual standards governing the duties of the Pineapple board of managers. The LLC Agreement also restricts the remedies available to Pineapple members for actions taken that might, without those limitations, constitute breaches of fiduciary duty and permits the Pineapple board of managers to take into account the interest of other parties in addition to Pineapple’s interests when resolving conflicts of interest.

 

 

 

Taxation

CSI

 

Pineapple

 

 

 

CSI is treated as a corporation for U.S. federal income tax purposes. See “Material U.S. Federal Income Tax Consequences.”

Pineapple will be treated as a corporation for U.S. federal income tax purposes. 

 

220 

 

 

LEGAL MATTERS

The validity of the CSI common stock to be issued in connection with the merger will be passed upon by Ballard Spahr LLP. Certain U.S. federal income tax consequences relating to the CVRs will be passed upon for CSI by Ballard Spahr LLP.

EXPERTS

The consolidated financial statements of Communications Systems, Inc., as of and for the years ended December 31, 2020 and 2019, have been audited by Baker Tilly US, LLP, independent registered public accounting firm, as stated in their report which is included herein. Such financial statements have been included herein in reliance on the report of such firm given upon their authority as experts in accounting and auditing.

The financial statements of Pineapple Energy LLC as of December 31, 2020 and for the period of inception (December 1, 2020) through December 31, 2020, have been audited by Baker Tilly US, LLP, independent registered public accounting firm, as stated in their report which is included herein (which contains an explanatory paragraph describing conditions that raise substantial doubt about Pineapple Energy LLC’s ability to continue as a going concern as described in Note 1 to the financial statements). Such financial statements have been included herein in reliance on the report of such firm given upon their authority as experts in accounting and auditing.

The combined financial statements of Hawaii Energy Connection, LLC and E-Gear, LLC as of and for the years ended December 31, 2020 and 2019, have been audited by Baker Tilly US, LLP, independent registered public accounting firm, as stated in their report which is included herein. Such combined financial statements have been included herein in reliance on the report of such firm given upon their authority as experts in accounting and auditing.

With respect to the unaudited interim financial statements of Pineapple Energy LLC and the unaudited interim combined financial statements of Hawaii Energy Connection, LLC and E-Gear, LLC for the six-month periods ended June 30, 2021, included in this proxy statement/prospectus, Baker Tilly US, LLP has reported that they have applied limited procedures in accordance with professional standards for a review of such interim financial statements. However, their reports dated October 25, 2021, included herein, state that they did not audit and they do not express an opinion on those interim financial statements. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. Baker Tilly US, LLP is not subject to the liability provisions of Section 11 of the Securities Act of 1933 for their report on the unaudited interim financial statements because those reports are not a “report” or a “part” of the registration statement prepared or certified by the accountants within the meaning of Sections 7 and 11 of the Act.

HOUSEHOLDING OF MATERIALS

Some banks, brokers and other nominee record holders may be participating in the practice of “householding.” This means that only one copy of this proxy statement/prospectus may have been sent to multiple shareholders in a household. We will promptly deliver, upon oral or written request, a separate copy of the proxy statement to any shareholder residing at an address to which only one copy was mailed. Requests for additional copies should be directed in writing to a shareholder’s broker, bank or other nominee holding shares of our common stock for such shareholder or to us at Communications Systems, Inc., 10900 Red Circle Drive, Minnetonka, MN 55343, Attention: Secretary, or call our Secretary at (952) 996-1674. Shareholders wishing to receive separate copies of our proxy statements in the future, and shareholders sharing an address that wish to receive a single copy of our proxy statements if they are receiving multiple copies of our proxy statements, should contact their bank, broker or other nominee record holder, or may contact the Secretary at the above address.

SHAREHOLDER PROPOSALS

Pursuant to our bylaws, the business transacted at all special meetings must be confined to the purposes stated in the notice of the special meeting and accordingly, shareholder proposals cannot be submitted for the special meeting.

Whether or not the Pineapple Merger Transaction is consummated, CSI’s SEC reporting obligations as a public company will not be affected. CSI has not yet held a 2021 annual meeting of shareholders. As a result, under Rule

221 

 

 

14a-8 promulgated under the Exchange Act (“Rule 14a-8”), a shareholder may submit proposals before the CSI 2021 annual meeting of shareholders if all applicable requirements of Rule 14a-8 are satisfied and such proposals are received by our Secretary within a reasonable time before we print and mail materials for our 2021 annual meeting of shareholders. We anticipate that we will disclose the deadline for shareholders to submit proposals for the 2021 annual meeting of shareholders under Rule 14a-8 on a Current Report on Form 8-K, Quarterly Report on Form 10-Q or Annual Report on Form 10-K once such deadline is known.

 

Pursuant to CSI’s bylaws, except in the case of proposals made in accordance with Rule 14a-8, at the annual meeting only such business may be conducted as is of a nature that is appropriate for consideration at an annual meeting and has been either specified in the notice of the meeting, otherwise properly brought before the meeting by or at the direction of the CSI board of directors, or otherwise properly brought before the meeting by a shareholder who has given timely written notice to the Secretary of CSI of the shareholder’s intention to bring the business before the meeting. To be timely, the notice must be given by such shareholder to the Secretary of the Company not less than 45 days or more than 75 days prior to a meeting date corresponding to the previous year’s annual meeting. Notice relating to the conduct of such business at an annual meeting must contain certain information as described in Section 2.9 of our bylaws.

WHERE YOU CAN FIND MORE INFORMATION

We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at www.sec.gov. The reports and other information that we file with the SEC are also available in the “Financial Reports” section of our corporate website at www.commsystems.com. Our website address is provided as an inactive textual reference only. The information provided on our website is not part of this proxy statement/prospectus.

Any person, including any beneficial owner, to whom this proxy statement/prospectus is delivered may request a copy of this proxy statement/prospectus or any of its appendices, without charge, by written request directed to the attention of our Secretary at Communications Systems, Inc., 10900 Red Circle Drive, Minnetonka, MN 55343, or by calling our Secretary at (952) 996-1674.

Communications Systems has filed with the SEC a registration statement on Form S-4, of which this proxy statement/prospectus is a part, under the Securities Act to register the shares of CSI common stock to be issued to Pineapple equity holders in the merger. The registration statement, including the attached annexes, exhibits and schedules, contains additional relevant information about CSI and CSI common stock. However, this proxy statement/prospectus does not contain all of the information set forth in the registration statement and the exhibits and schedules to the registration statement. CSI and Pineapple encourage you to carefully read the registration statement and the exhibits and schedules to the registration statement.

CSI has supplied all the information contained in this proxy statement/prospectus relating to CSI and Pineapple has supplied all information contained in this proxy statement/prospectus relating to Pineapple.

This proxy statement/prospectus does not constitute the solicitation of a proxy in any jurisdiction to or from any person to whom or from whom it is unlawful to make such proxy solicitation in that jurisdiction. You should rely only on the information contained in this proxy statement/prospectus to vote your shares at the special meeting. We have not authorized anyone to provide you with information that is different from what is contained in this proxy statement/prospectus.

This proxy statement/prospectus is dated             , 2021. You should not assume that the information contained in this proxy statement/prospectus is accurate as of any date other than that date, and the mailing of this proxy statement/prospectus to shareholders does not create any implication to the contrary.

222 

 

 

FINANCIAL STATEMENTS

The following is an index to the financial statements of Communications Systems, Inc. and its subsidiaries included in this proxy statement/prospectus:

Six Months Ended June 30, 2021

 

 

 

 

 

Condensed Consolidated Balance Sheets as of June 30, 2021 and December 31, 2020

 

F-1

 

 

 

Condensed Consolidated Statements of Loss and Compressive Loss for the Six Months Ended June 30, 2021 and June 30, 2020

 

F-2

 

 

 

Condensed Consolidated Statements of Changes in Stockholders’ Equity for the Six Months Ended June 30, 2021 and June 30, 2020

 

F-3

 

 

 

Condensed Consolidated Statements of Cash Flows for the Six Months Ended June 30, 2021 and June 30, 2020

 

F-5

 

 

 

Notes to Condensed Consolidated Financial Statements (Unaudited)

 

F-6

 

 

 

Years Ended December 31, 2020 and 2019

 

 

 

 

 

Report of Independent Registered Public Accounting Firm on Consolidated Financial Statements

 

F-24

 

 

 

Consolidated Balance Sheets as of December 31, 2020 and December 31, 2019

 

F-27

 

 

 

Consolidated Statements of Income (Loss) and Compressive Income (Loss) for the Years Ended December 31, 2020 and December 31, 2019

 

F-28

 

 

 

Consolidated Statements of Changes in Stockholders’ Equity for the Years Ended December 31, 2020 and December 31, 2019

 

F-29

 

 

 

Consolidated Statements of Cash Flows for the Years Ended December 31, 2020 and December 31, 2019

 

F-30

 

 

 

Notes to Consolidated Financial Statements

 

F-31

 

The following is an index to the financial statements of Pineapple Energy LLC included in this proxy statement/prospectus:

Six Months Ended June 30, 2021

 

 

 

 

 

Condensed Balance Sheets as of June 30, 2021 and December 31, 2020

 

F-55

 

 

 

Condensed Statement of Loss and Members’ Deficit for the Six Months Ended June 30, 2021

 

F-56

 

 

 

Condensed Statement of Cash Flows for the Six Months Ended June 30, 2021

 

F-57

 

 

 

Notes to Condensed Financial Statements for the Six Months Ended June 30, 2021

 

F-58

 

 

 

Period of Inception (December 1, 2020) through December 31, 2020

 

 

 

 

 

Report of Independent Registered Public Accounting Firm on Financial Statements

 

F-65

 

 

 

Balance Sheet as of December 31, 2020

 

F-67

223 

 

 

 

 

Statement of Loss and Members’ Deficit for the Period of Inception (December 1, 2020) through December 31, 2020

 

F-68

 

 

 

Statement of Cash Flows for the Period of Inception (December 1, 2020) through December 31, 2020

 

F-69

 

 

 

Notes to Financial Statements for the Period of Inception (December 1, 2020) through December 31, 2020

 

F-70

 

The following is an index to the combined financial statements of Hawaii Energy Connection, LLC and E-Gear, LLC, included in this proxy statement/prospectus:

Six Months Ended June 30, 2021

 

 

 

 

 

Condensed Combined Balance Sheets as of June 30, 2021 and December 31, 2020

 

F-77

 

 

 

Condensed Combined Statements of Income (Loss) and Members’ Equity for the Six Months Ended June 30, 2021 and June 30, 2020

 

F-78

 

 

 

Condensed Combined Statements of Cash Flows for the Six Months Ended June 30, 2021 and June 30, 2020

 

F-79

 

 

 

Notes to Condensed Combined Financial Statements June 30, 2021 and 2020

 

F-80

 

 

 

Years Ended December 31, 2020 and 2019

 

 

 

 

 

Report of Independent Registered Public Accounting Firm on Combined Financial Statements

 

F-89

 

 

 

Combined Balance Sheets as of December 31, 2020 and December 31, 2019

 

F-90

 

 

 

Combined Statements of Income and Members’ Equity for the Years Ended December 31, 2020 and December 31, 2019

 

F-91

 

 

 

Combined Statements of Cash Flows for the Years Ended December 31, 2020 and December 31, 2019

 

F-92

 

 

 

Notes to Combined Financial Statements December 31, 2020 and 2019

 

F-93

 

224 

 

           
COMMUNICATIONS SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
           
ASSETS
      Audited
  June 30   December 31
 ASSETS 2021   2020
CURRENT ASSETS:          
Cash and cash equivalents $ 14,884,643   $ 13,092,484
Investments   1,705,035     2,759,024
Trade accounts receivable, less allowance for          
doubtful accounts of $153,000 and $121,000, respectively   8,729,795     10,177,445
Inventories, net   7,931,875     8,696,880
Prepaid income taxes   17,388     35,948
Other current assets   857,520     996,472
TOTAL CURRENT ASSETS   34,126,256     35,758,253
PROPERTY, PLANT AND EQUIPMENT, net   6,955,565     7,242,072
OTHER ASSETS:          
Investments   5,795,340     7,109,212
Goodwill   2,086,393     2,086,393
Operating lease right of use asset   311,746     413,415
Intangible assets, net   2,551,052     2,775,361
Other assets, net   170,980     171,619
TOTAL OTHER ASSETS   10,915,511     12,556,000
TOTAL ASSETS $ 51,997,332   $ 55,556,325
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:          
Accounts payable $ 3,618,279   $ 2,378,449
Accrued compensation and benefits   1,706,396     2,298,075
Operating lease liability   205,233     213,553
Other accrued liabilities   1,396,480     1,524,515
Accrued consideration       550,000
Dividends payable   4,849     16,147
Deferred revenue   607,539     456,912
TOTAL CURRENT LIABILITIES   7,538,776     7,437,651
LONG TERM LIABILITIES:          
Long-term compensation plans   73,407     116,460
Operating lease liability   97,174     197,308
Deferred revenue   399,156     310,179
TOTAL LONG-TERM LIABILITIES   569,737     623,947
COMMITMENTS AND CONTINGENCIES (Footnote 9)          
STOCKHOLDERS' EQUITY          
Preferred stock, par value $1.00 per share;
3,000,000 shares authorized; none issued
         
Common stock, par value $0.05 per share; 30,000,000 shares authorized;          
9,470,424 and 9,321,927 shares issued and outstanding, respectively   473,521     466,096
Additional paid-in capital   44,053,498     43,572,114
Retained earnings (accumulated deficit)   (7,772)     4,135,284
Accumulated other comprehensive loss   (630,428)     (678,767)
TOTAL STOCKHOLDERS' EQUITY   43,888,819     47,494,727
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 51,997,332   $ 55,556,325
           
The accompanying notes are an integral part of the condensed consolidated financial statements.

 

F-1

 

                       
COMMUNICATIONS SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF LOSS AND COMPREHENSIVE LOSS
(Unaudited)
                       
                       
  Three Months Ended June 30   Six Months Ended June 30
  2021   2020   2021   2020
Sales $ 10,996,802   $ 9,627,952   $ 21,156,117   $ 18,790,694
Cost of sales   6,389,247     6,147,904     12,331,924     11,573,499
Gross profit   4,607,555     3,480,048     8,824,193     7,217,195
Operating expenses:                      
Selling, general and administrative expenses   4,989,608     4,731,887     10,160,867     9,672,558
Transaction costs   1,278,826     394,366     2,470,721     414,585
Total operating expenses   6,268,434     5,126,253     12,631,588     10,087,143
Operating loss from continuing operations   (1,660,879)     (1,646,205)     (3,807,395)     (2,869,948)
Other income (expenses):                      
Investment and other (expense) income   (292,454)     288,481     (303,309)     400,238
Gain on sale of assets   15,894         15,894     308,403
Interest and other expense   (2,661)     (9,498)     (4,938)     (19,091)
Other (expense) income, net   (279,221)     278,983     (292,353)     689,550
Operating loss from continuing operations before income taxes   (1,940,100)     (1,367,222)     (4,099,748)     (2,180,398)
Income tax (benefit) expense   (613)     (446)     590     (4,903)
Net loss from continuing operations   (1,939,487)     (1,366,776)     (4,100,338)     (2,175,495)
Net (loss) income from discontinued operations, net of tax       (568,745)         1,744,607
Net loss   (1,939,487)     (1,935,521)     (4,100,338)     (430,888)
                       
Other comprehensive income (loss), net of tax:                      
Unrealized gain (loss) on available-for-sale securities   2,652     24,549     (6,647)     10,097
Foreign currency translation adjustment   35,255     (8,902)     54,986     (141,005)
Total other comprehensive income (loss)   37,907     15,647     48,339     (130,908)
Comprehensive (loss) income $ (1,901,580)   $ (1,919,874)   $ (4,051,999)   $ (561,796)
                       
Basic net (loss) income per share:                      
Continuing operations $ (0.20)   $ (0.15)   $ (0.44)   $ (0.24)
Discontinued operations       (0.06)         0.19
  $ (0.20)   $ (0.21)   $ (0.44)   $ (0.05)
                       
Diluted net (loss) income per share:                      
Continuing operations $ (0.20)   $ (0.15)   $ (0.44)   $ (0.24)
Discontinued operations       (0.06)         0.19
  $ (0.20)   $ (0.21)   $ (0.44)   $ (0.05)
                       
Weighted Average Basic Shares Outstanding   9,461,861     9,350,344     9,397,582     9,307,967
Weighted Average Dilutive Shares Outstanding   9,461,861     9,350,344     9,397,582     9,307,967
Dividends declared per share $   $ 0.02   $   $ 0.04
                       
The accompanying notes are an integral part of the condensed consolidated financial statements.

 

F-2

 

                                 
COMMUNICATIONS SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
(Unaudited)
For the Six Months Ended June 30, 2021                              
                                 
                  Retained   Accumulated      
            Additional   Earnings   Other      
  Common Stock   Paid-in   (Accumulated   Comprehensive      
  Shares   Amount   Capital   Deficit)   Loss   Total
BALANCE AT DECEMBER 31, 2020 9,321,927   $ 466,096   $ 43,572,114   $ 4,135,284   $ (678,767)   $ 47,494,727
Net loss             (4,100,338)         (4,100,338)
Issuance of common stock under                                
Employee Stock Purchase Plan 9,540     477     48,532             49,009
Issuance of common stock to                                
Employee Stock Ownership Plan 72,203     3,610     326,358             329,968
Issuance of common stock under                                
Executive Stock Plan 95,881     4,794                 4,794
Share based compensation         242,332             242,332
Other share retirements (29,127)     (1,456)     (135,838)     (42,713)         (180,007)
Shareholder dividends ($0.00 per share)             (5)         (5)
Other comprehensive income                 48,339     48,339
BALANCE AT JUNE 30, 2021 9,470,424   $ 473,521   $ 44,053,498   $ (7,772)   $ (630,428)   $ 43,888,819
                                 
For the Three Months Ended June 30, 2021                              
                             
                  Retained   Accumulated      
            Additional   Earnings   Other      
  Common Stock   Paid-in   (Accumulated   Comprehensive      
  Shares   Amount   Capital   Deficit)   Loss   Total
BALANCE AT MARCH 31, 2021 9,448,129   $ 472,406   $ 43,969,776   $ 1,948,084   $ (668,335)   $ 45,721,931
Net loss             (1,939,487)         (1,939,487)
Issuance of common stock under                                
Employee Stock Purchase Plan 3,893     195     23,008             23,203
Issuance of common stock under                                
Executive Stock Plan 26,922     1,346                 1,346
Share based compensation         100,496             100,496
Other share retirements (8,520)     (426)     (39,782)     (16,366)         (56,574)
Shareholder dividends ($0.00 per share)             (3)         (3)
Other comprehensive income                 37,907     37,907
BALANCE AT JUNE 30, 2021 9,470,424   $ 473,521   $ 44,053,498   $ (7,772)   $ (630,428)   $ 43,888,819
The accompanying notes are an integral part of the condensed consolidated financial statements.

 

F-3

 

For the Six Months Ended June 30, 2020                              
                               
                        Accumulated      
            Additional         Other      
  Common Stock   Paid-in   Retained   Comprehensive      
  Shares   Amount   Capital   Earnings   Loss   Total
BALANCE AT DECEMBER 31, 2019 9,252,749   $ 462,637   $ 42,977,914   $ 4,649,395   $ (697,664)   $ 47,392,282
Net loss             (430,888)         (430,888)
Issuance of common stock under                                
Employee Stock Purchase Plan 8,069     403     41,653             42,056
Issuance of common stock to                                
Employee Stock Ownership Plan 66,059     3,303     404,281             407,584
Issuance of common stock under                                
Executive Stock Plan 48,584     2,429     5,180             7,609
Share based compensation         176,627             176,627
Other share retirements (23,975)     (1,199)     (110,609)     (7,117)         (118,925)
Shareholder dividends ($0.04 per share)             (381,258)         (381,258)
Other comprehensive loss                 (130,908)     (130,908)
BALANCE AT JUNE 30, 2020 9,351,486   $ 467,573   $ 43,495,046   $ 3,830,132   $ (828,572)   $ 46,964,179
                                 
For the Three Months Ended June 30, 2020                          
                               
                        Accumulated      
            Additional         Other      
  Common Stock   Paid-in   Retained   Comprehensive      
  Shares   Amount   Capital   Earnings   Loss   Total
BALANCE AT MARCH 31, 2020 9,346,966   $ 467,347   $ 43,381,778   $ 5,957,796   $ (844,219)   $ 48,962,702
Net loss             (1,935,521)         (1,935,521)
Issuance of common stock under                                
Employee Stock Purchase Plan 4,520     226     19,933             20,159
Issuance of common stock under                                
Executive Stock Plan 2,000     100     5,180             5,280
Share based compensation         97,459             97,459
Other share retirements (2,000)     (100)     (9,304)     (735)         (10,139)
Shareholder dividends ($0.02 per share)             (191,408)         (191,408)
Other comprehensive income                 15,647     15,647
BALANCE AT JUNE 30, 2020 9,351,486   $ 467,573   $ 43,495,046   $ 3,830,132   $ (828,572)   $ 46,964,179
The accompanying notes are an integral part of the condensed consolidated financial statements.

 

F-4

 

           
COMMUNICATIONS SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
           
           
  Six Months Ended June 30
  2021   2020
CASH FLOWS FROM OPERATING ACTIVITIES:          
Net loss $ (4,100,338)   $ (430,888)
Net income from discontinued operations, net of tax       1,744,607
Net loss from continuing operations   (4,100,338)     (2,175,495)
Adjustments to reconcile net loss to          
net cash provided by operating activities:          
Depreciation and amortization   505,339     429,800
Share based compensation   242,332     176,627
Deferred taxes       9,534
Investment impairment loss   260,182    
Gain on sale of assets   (15,894)     (303,898)
Changes in assets and liabilities:          
Trade accounts receivable   1,422,527     2,200,300
Inventories   765,005     (1,372,814)
Prepaid income taxes   18,561     (14,136)
Other assets, net   156,341     409,003
Accounts payable   1,239,167     879,851
Accrued compensation and benefits   (305,375)     (671,164)
Other accrued liabilities   104,810     (488,731)
Net cash provided by operating activities - continuing operations   292,657     (921,123)
Net cash used in operating activities - discontinued operations       (1,216,374)
Net cash provided by (used in) operating activities   292,657     (2,137,497)
CASH FLOWS FROM INVESTING ACTIVITIES:          
Capital expenditures   (10,082)     (89,240)
Acquisition of business, net of cash acquired       (3,984,447)
Purchases of investments       (9,316,544)
Proceeds from the sale of property, plant and equipment   16,248     420,000
Proceeds from the sale of investments   2,130,204     14,024,125
Net cash provided by investing activities - continuing operations   2,136,370     1,053,894
Net cash provided by investing activities - discontinued operations       7,992,340
Net cash provided by investing activities   2,136,370     9,046,234
CASH FLOWS FROM FINANCING ACTIVITIES:          
Cash dividends paid   (11,303)     (375,742)
Proceeds from issuance of common stock, net of shares withheld   53,803     49,665
Payment of contingent consideration related to acquisition   (550,000)    
Purchase of common stock   (180,007)     (118,925)
Net cash used in financing activities   (687,507)     (445,002)
EFFECT OF FOREIGN EXCHANGE RATE CHANGES ON CASH   50,639     (45,588)
NET INCREASE IN CASH AND CASH EQUIVALENTS   1,792,159     6,418,147
CASH, CASH EQUIVALENTS AND RESTRICTED CASH AT BEGINNING OF PERIOD   13,092,484     14,607,510
CASH, CASH EQUIVALENTS AND RESTRICTED CASH AT END OF PERIOD $ 14,884,643   $ 21,025,657
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:          
Income taxes refunded $ (17,971)   $ 4,602
Interest paid   4,639     19,036
Dividends declared not paid   4,849     205,878
Operating right of use assets obtained in exchange for lease obligations       208,650
           
The accompanying notes are an integral part of the condensed consolidated financial statements.

 

F-5

 

 

COMMUNICATIONS SYSTEMS, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Unaudited)

NOTE 1 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Description of Business

Communications Systems, Inc. (herein collectively referred to as “CSI,” “our,” “we” or the “Company”) is a Minnesota corporation organized in 1969 that has classified its business into two segments: (1) the Electronics & Software segment (consisting of US-based subsidiary Transition Networks and UK-based subsidiary Net2Edge) which (i) manufactures and sells solutions that provide actionable intelligence, power and connectivity at the edge of networks through PoE products, software and services as well as traditional products such as media converters, network adapters and other connectivity products and (ii) designs, develops, and sells edge network access products, TDM (time-division multiplexing) over IP and other circuit emulation solutions, along with specialized cloud-based software solutions, primarily within the telecommunications market; and (2) the Services and Support segment (consisting of subsidiaries JDL and Ecessa), which (i) provides technology solutions including virtualization, managed services, wired and wireless network design and implementation, and hybrid cloud infrastructure and deployment and (ii) designs, develops, and sells SD-WAN (software-designed wide-area network) solutions.

 

As described in Note 16 of Notes to Financial Statements, on August 2, 2021, the Company and Lantronix, Inc. completed the sale by CSI to Lantronix of all of the issued and outstanding stock of CSI’s wholly owned subsidiary, Transition Networks, Inc., and the entire issued share capital of its wholly owned subsidiary, Transition Networks Europe Limited (collectively with Transition Networks, Inc., the “TN Companies”), pursuant to the securities purchase agreement dated April 28, 2021 (“E&S Sale Transaction”).

 

For purposes of this Form 10-Q, the Company classifies its businesses into the two segments discussed above. Non-allocated general and administrative expenses are separately accounted for as “Other” in the Company’s segment reporting. Intersegment revenues are eliminated upon consolidation.

Financial Statement Presentation

The condensed consolidated balance sheet as of June 30, 2021, the related condensed consolidated statements of loss and comprehensive loss, the condensed consolidated statements of changes in stockholders’ equity for the three and six months ended June 30, 2021 and 2020, and the condensed consolidated statements of cash flows for the periods ended June 30, 2021 and 2020 have been prepared by Company management. In the opinion of management, all adjustments (which include only normal recurring adjustments, except where noted) necessary to present fairly the financial position, results of operations, and cash flows at June 30, 2021 and 2020 and for the periods then ended have been made.

 

Certain information and footnote disclosures normally included in consolidated financial statements prepared in accordance with generally accepted accounting principles in the United States of America have been condensed or omitted. We recommend these condensed consolidated financial statements be read in conjunction with the financial statements and notes thereto included in the Company’s December 31, 2020 Annual Report to Shareholders on Form 10-K (“2020 Form 10-K”). The results of operations for the period ended June 30, 2021 are not necessarily indicative of operating results for the entire year.

 

F-6

 

 

The presentation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, and disclosure of contingent assets and liabilities at the balance sheet date, and the reported amounts of revenues and expenses during the reporting period. The estimates and assumptions used in the accompanying condensed consolidated financial statements are based upon management’s evaluation of the relevant facts and circumstances as of the time of the financial statements. Actual results could differ from those estimates.

 

Except to the extent updated or described below, the significant accounting policies set forth in Note 1 to the consolidated financial statements in the December 31, 2020 Form 10-K, appropriately represent, in all material respects, the current status of accounting policies, and are incorporated herein by reference.

Accumulated Other Comprehensive Loss

The components of accumulated other comprehensive loss, net of tax, are as follows:

 

                Accumulated Other Comprehensive Loss
                Other
    Foreign Currency   Unrealized gain   Comprehensive
    Translation   (loss) on securities   Loss
December 31, 2020   $ (700,000)   $ 21,000   $ (679,000)
                   
Net current period change     56,000     (7,000)     49,000
                   
June 30, 2021   $ (644,000)   $ 14,000   $ (630,000)

NOTE 2 – REVENUE RECOGNITION

Electronics & Software

 

The Company has determined that the revenue recognition for its Electronics & Software segment occurs upon delivery of the Company’s connectivity infrastructure and data transmission products. To determine when revenue should be recognized, it is important to determine when the transfer of control has occurred. The Company has determined that control transfers for these products upon shipment or delivery to the customer, in accordance with the agreed-upon shipping terms. As such, the timing of revenue recognition occurs at a specific point in time.

 

Services & Support

 

The Company has determined that the following performance obligations identified in its Services & Support segment are transferred over time: managed services and professional services (time and materials (“T&M”) and fixed price) as well as services under maintenance and service contracts. The managed services performance obligation is a bundled solution consisting of a series of distinct services that are substantially the same and that have the same pattern of transfer to the customer and are therefore recognized evenly over the term of the contract. T&M professional services arrangements are recognized over time with an input method based on hours expended towards satisfying the performance obligation. Fixed price professional service arrangements under a relatively longer-term service are also recognized over time with an input method based on hours expended. Maintenance and service contracts are recognized evenly over the life of the contract.

 

The Company has also identified the following performance obligations within its Services & Support segment that are recognized at a point in time which include resale of third-party hardware and software, installation,

 

F-7

 

arranging for another party to transfer services to the customer, and certain professional services. The resale of third-party hardware and software is recognized at a point in time, when the goods are shipped or delivered to the customer’s location, in accordance with the shipping terms. Installation services are recognized at a point in time when the services are completed. The service the Company provides to arrange for another party to transfer services to the customer is satisfied at a point in time after the Company has transferred control when the service is first available to the customer by the third-party vendor. The Company reports revenue from these third-party services on a net basis in its financial statements. Depending on the nature of the service, certain professional services transfer control at a point in time. The Company evaluates these circumstances on a case by case basis to determine if revenue should be recognized over time or at a point in time.

 

Disaggregation of revenue

 

Revenues are recognized when control of the promised goods or services is transferred to our customers, in an amount that best reflects the consideration we expect to receive in exchange for those goods or services. In accordance with ASC 606-10-50-5, the following tables present how we disaggregate our revenues, which is different for each segment.

For the Electronics & Software segment, we analyze revenue by region and product group, which is as follows for the three and six months ended June 30, 2021 and 2020:

Schedule of Disaggregation of Revenues

                       
  Electronics & Software Sales by Region
  Three Months Ended June 30   Six Months Ended June 30
    2021     2020     2021     2020
North America $ 7,721,000   $ 6,898,000   $ 14,921,000   $ 14,346,000
International   1,586,000     1,389,000     2,750,000     2,477,000
  $ 9,307,000   $ 8,287,000   $ 17,671,000   $ 16,823,000
                       
  Electronics & Software Sales by Product Group
  Three Months Ended June 30   Six Months Ended June 30
    2021     2020     2021     2020
Intelligent edge solutions $ 3,779,000   $ 3,023,000   $ 7,492,000   $ 6,377,000
Traditional products   5,528,000     5,264,000     10,179,000     10,446,000
  $ 9,307,000   $ 8,287,000   $ 17,671,000   $ 16,823,000

 

For the Services & Support segment, we analyze revenue by customer group and type, which is as follows for the three and six months ended June 30, 2021 and 2020:

                       
  Services & Support Revenue by Customer Group
  Three Months Ended June 30   Six Months Ended June 30
    2021     2020     2021     2020
Financial $ 399,000   $ 103,000   $ 824,000   $ 196,000
Healthcare   245,000     240,000     498,000     430,000
Education   85,000     626,000     149,000     719,000
Other commercial clients   960,000     371,000     2,013,000     621,000
CSI IT operations   144,000     185,000     288,000     386,000
  $ 1,833,000   $ 1,525,000   $ 3,772,000   $ 2,352,000

 

F-8

 

  Services & Support Revenue by Type
  Three Months Ended June 30   Six Months Ended June 30
    2021     2020     2021     2020
Project & product revenue $ 245,000   $ 746,000   $ 630,000   $ 886,000
Services & support revenue   1,588,000     779,000     3,142,000     1,466,000
  $ 1,833,000   $ 1,525,000   $ 3,772,000   $ 2,352,000

NOTE 3 – DISCONTINUED OPERATIONS

On March 11, 2020, the Company sold the remainder of its Suttle business lines, including the SoHo, MediaMAX, and SpeedStar brands and inventory as well as working capital, certain capital equipment, intellectual property, and customer relationships to Oldcastle Infrastructure, Inc. (“Oldcastle”) for $8,000,000, with a working capital adjustment 90 days after close. Oldcastle will operate the majority of the acquired Suttle business through its wholly-owned subsidiary, Primex Technologies, Inc. The Company received proceeds of $8,900,000 and recorded a gain on the sale of $2,247,000 during 2020.

 

Concurrent with the closing of the transaction, the Company and Oldcastle entered into a Transition Services Agreement (“TSA”) under which Suttle continued to manufacture products for Oldcastle for six months, to ensure seamless supply and quality assurance to the existing customer base. Concurrently with the closing of the transaction and the TSA, the Company and Oldcastle also entered into a lease agreement under which Oldcastle agreed to lease two buildings in Hector, Minnesota, where Suttle had conducted operations. Base rents under the lease agreement range from $6,970 to $7,180 per month. The presentation of discontinued operations has been retrospectively applied to all prior periods presented.

The financial results of the discontinued operations are as follows:

                         
    Three Months Ended June 30   Six Months Ended June 30
    2021   2020   2021   2020
Sales   $   $   $   $ 3,025,000
Cost of sales                 2,050,000
Selling, general and administrative expenses                 500,000
Restructuring expenses         445,000         764,000
Gain on sale of assets         122,000         (2,039,000)
Operating income before income taxes         (567,000)         1,750,000
Income tax expense         2,000         5,000
Income from discontinued operations   $   $ (569,000)   $   $ 1,745,000

During the six months ended June 30, 2020, the Company recorded $764,000 in restructuring expense. This consisted of severance and related benefits costs due to the sale of the remainder of Suttle’s business lines and the closure of the plant. The Company had no restructuring costs for the three and six months ended June 30, 2021, paid $249,000 in restructuring charges during the first six months of 2021 and had $3,000 in restructuring accruals recorded in accrued compensation and benefits at June 30, 2021 that are expected to be paid during the third quarter of 2021.

F-9

 

NOTE 4 – CASH EQUIVALENTS AND INVESTMENTS

The following tables show the Company’s cash equivalents and available-for-sale securities’ amortized cost, gross unrealized gains, gross unrealized losses and fair value by significant investment category recorded as cash and cash equivalents or short- and long-term investments as of June 30, 2021 and December 31, 2020:

                                         
June 30, 2021
  Amortized Cost   Gross Unrealized
‎Gains
  Gross Unrealized
‎Losses
  Fair Value   Cash Equivalents   Short-Term
‎Investments
  Long-Term
‎Investments
Cash equivalents:                                        
Money Market funds $ 11,564,000    $   $   $ 11,564,000    $ 11,564,000    $   $
Subtotal   11,564,000              11,564,000      11,564,000         
                                         
Investments:                                        
Corporate Notes/Bonds   6,228,000      2,000      (2,000)     6,228,000          1,705,000      4,523,000 
Convertible Debt   374,000              374,000              374,000 
Subtotal   6,602,000      2,000      (2,000)     6,602,000          1,705,000      4,897,000 
                                         
                                         
Total $ 18,166,000    $ 2,000    $ (2,000)   $ 18,166,000    $ 11,564,000    $ 1,705,000    $ 4,897,000 
                                         
                                         
December 31, 2020
  Amortized Cost   Gross Unrealized
‎Gains
  Gross Unrealized
‎Losses
  Fair Value   Cash Equivalents   Short-Term
‎Investments
  Long-Term
‎Investments
Cash equivalents:                                        
Money Market funds $ 9,424,000    $   $   $ 9,424,000    $ 9,424,000    $   $
Subtotal   9,424,000              9,424,000      9,424,000         
                                         
Investments:                                        
Commercial Paper   700,000              700,000          700,000     
Corporate Notes/Bonds   7,658,000      7,000      (1,000)     7,664,000          2,059,000      5,605,000 
Convertible Debt   605,000              605,000              605,000 
Subtotal   8,963,000      7,000      (1,000)     8,969,000          2,759,000      6,210,000 
                                         
                                         
Total $ 18,387,000    $ 7,000    $ (1,000)   $ 18,393,000    $ 9,424,000    $ 2,759,000    $ 6,210,000 

 

The following table summarizes the estimated fair value of our investments, designated as available-for-sale and classified by the contractual maturity date of the securities as of June 30, 2021:

    Amortized Cost   Estimated Market
‎Value
Due within one year   $ 1,705,000   $ 1,705,000
Due after one year through five years     4,897,000     4,897,000
    $ 6,602,000   $ 6,602,000

 

F-10

 

During the second quarter of 2021, the Company recognized a realized loss on its convertible debt investments and recorded $260,000 in expense within investment and other income (expense) in the accompanying condensed consolidated statement of loss and comprehensive loss. The Company did not recognize any gross realized gains during either of the three or six-month periods ending June 30, 2021 and did not recognize any gross realized gains or losses during either of the three or six-month periods ending June 30, 2020.

 

In April 2020, the Company made an $899,000 investment in the common stock of Quortus Ltd., a UK-based company that provides virtual core network software for Private LTE solutions for critical and secure communications. This investment was important for the Company’s Electronics & Software segment because this segment was partnering with Quortus to integrate the Quortus Private LTE core in existing and new products for that segment’s federal business, network extensions, and private networks for enterprises. The Company’s investment represents less than 10% of the outstanding equity of Quortus Ltd. The Company uses the cost method to account for investments in common stock of entities such as Quortus if the Company does not have the ability to exercise significant influence over the operating and financial matters of the entity. The Company also uses the cost method to account for its investments that are not in the form of common stock or in-substance common stock in entities if the Company does not have the ability to exercise significant influence over the entity’s operating and financial matters.

NOTE 5 - STOCK-BASED COMPENSATION

Employee Stock Purchase Plan

 

Under the Company’s Employee Stock Purchase Plan (“ESPP”), employees are able to acquire shares of common stock at 85% of the price at the end of each current quarterly plan term. The most recent term ended June 30, 2021. The ESPP is considered compensatory under current Internal Revenue Service rules. At June 30, 2021, after giving effect to the shares issued as of that date, 59,303 shares remain available for future issuance under the ESPP. The ESPP was suspended effective March 31, 2021 due to conditions of the Pineapple Merger Agreement.

 

2011 Executive Incentive Compensation Plan

 

On March 28, 2011 the Board adopted and on May 19, 2011 the Company’s shareholders approved the Company’s 2011 Executive Incentive Compensation Plan (“2011 Incentive Plan”). The 2011 Incentive Plan authorizes incentive awards to officers, key employees and non-employee directors in the form of options (incentive and non-qualified), stock appreciation rights, restricted stock, restricted stock units, performance stock units (“deferred stock”), performance cash units, and other awards in stock, cash, or a combination of stock and cash. The 2011 Incentive Plan, as amended, allows the issuance of up to 2,500,000 shares of common stock.

 

At June 30, 2021, 526,913 shares have been issued under the 2011 Incentive Plan, 1,168,630 shares are subject to currently outstanding options, deferred stock awards, and unvested restricted stock units, and 804,457 shares are eligible for grant under future awards.

 

F-11

 

Changes in Stock Options Outstanding

The following table summarizes changes in the number of outstanding stock options under the 2011 Incentive Plan over the period December 31, 2020 to June 30, 2021:

             
            Weighted average
      Weighted average   remaining
      exercise price   contractual term
  Options   per share   in years
Outstanding – December 31, 2020 1,173,190   $ 6.52   3.35
Awarded        
Exercised        
Forfeited (103,265)     12.43    
Outstanding – June 30, 2021 1,069,925     5.95   3.14
             
Exercisable at June 30, 2021 904,263   $ 6.20   2.72
Expected to vest June 30, 2021 1,069,925     5.95   3.14

The aggregate intrinsic value of all options (the amount by which the market price of the stock on the last day of the period exceeded the market price of the stock on the date of grant) outstanding at June 30, 2021 was $2,129,000. The intrinsic value of all options exercised during the six months ended June 30, 2021 was $0. Net cash proceeds from the exercise of all stock options were $0 in each of the six-month periods ended June 30, 2021 and 2020.

 

Changes in Deferred Stock Outstanding

The following table summarizes the changes in the number of deferred stock shares under the 2011 Incentive Plan over the period December 31, 2020 to June 30, 2021:

        Weighted Average
        Grant Date
    Shares   Fair Value
Outstanding – December 31, 2020   272,695   $ 3.91
Granted      
Vested   (95,881)     3.72
Forfeited   (78,109)     3.56
Outstanding – June 30, 2021   98,705     4.36

Compensation Expense

 

Share-based compensation expense recognized for the six months ended June 30, 2021 was $242,000 before income taxes and $191,000 after income taxes. Share-based compensation expense recognized for the six months ended June 30, 2020 was $177,000 before income taxes and $140,000 after income taxes. Unrecognized compensation expense for the Company’s plans was $322,000 at June 30, 2021 and is expected to be recognized over a weighted-average period of 2.1 years. Share-based compensation expense is recorded as a part of selling, general and administrative expenses.

 

F-12

 

Employee Stock Ownership Plan (ESOP)

 

All eligible employees of the Company participate in the ESOP after completing one year of service. Contributions are allocated to each participant based on compensation and vest 20% after two years of service and incrementally thereafter, with full vesting after six years. The Company contributed $329,968 for which the Company issued 72,203 shares in March 2021 for the 2020 ESOP contribution.

NOTE 6 - INVENTORIES

Inventories summarized below are priced at the lower of first-in, first-out cost or net realizable value:

             
    June 30   December 31
    2021   2020
Finished goods   $ 7,217,000   $ 7,871,000
Raw and processed materials     715,000     826,000
    $ 7,932,000   $ 8,697,000

NOTE 7 – BUSINESS COMBINATIONS

On May 14, 2020, in a reverse triangular merger, the Company completed the acquisition of 100% of Ecessa Corporation. Ecessa designs and distributes software-defined wide area networking (SD-WAN) solutions for businesses through the deployment of over 10,000 field installations (since 2002) of Ecessa Edge®, PowerLink®, and WANworX® controllers. The acquisition expands the Company’s IoT intelligent edge products and services and provides opportunities to expand the Company’s services platform. The purchase price was $4,642,000, with cash acquired totaling $666,000. The purchase price includes initial consideration of $4,666,000 and $(24,000) in working capital adjustments.

The assets and liabilities of Ecessa were recorded in the consolidated balance sheet within the Services & Support segment as of the acquisition date, at their respective fair values. The purchase price allocation is based on the estimated fair value of assets acquired and liabilities assumed and has been allocated as follows:

       
    May 14, 2020
Current assets   $ 1,101,000
Property, plant, and equipment     127,000
Other long-term assets     421,000
Intangible assets     2,260,000
Goodwill     1,341,000
Total assets     5,250,000
       
Total liabilities     608,000
       
Net assets acquired   $ 4,642,000

Identifiable intangible assets are definite-lived assets. These assets include trade name/trademark/internet domain assets, non-compete agreements, customer relationships, and internally developed software intangible assets, and have a weighted average amortization period of 7 years, which matches the weighted average useful life of the assets. Goodwill recorded as part of the purchase price allocation is not tax deductible.

 

On November 3, 2020, the Company acquired the operating assets of privately held IVDesk Minnesota, Inc. (“IVDesk”) from a third-party receiver (“Receiver”). IVDesk provides private cloud services to small- and mid-size businesses (SMB), with a particular focus on the financial services industry. The acquisition expands the

 

F-13

 

Company’s monthly recurring revenue service model, bringing additional resources and experience in cloud-delivered applications. The purchase price was $1,368,000 and includes initial consideration of $950,000, working capital adjustments of $(132,000), and $550,000 in contingent consideration, which the Company agreed to pay in additional consideration upon retaining a certain customer level 120 days after closing. During March 2021, upon meeting the requirements of the earn-out, the Company paid the Receiver the additional consideration. At June 30, 2021, the Company had no further liabilities related to the contingent consideration.

 

The assets and liabilities of IVDesk are recorded in the consolidated balance sheet within the Services & Support segment at June 30, 2021. The purchase price allocation was based on estimates of the fair value of assets acquired and liabilities assumed, and included total assets of $1,500,000, including property, plant, and equipment of $35,000, goodwill of $745,000 and intangible assets of $720,000, and total liabilities of $132,000. Identifiable intangible assets are definite-lived assets. These assets include customer relationships and have a weighted average amortization period of 8 years, which matches the weighted average useful life of the assets.

NOTE 8 – GOODWILL AND INTANGIBLE ASSETS

The changes in the carrying amount of goodwill for the year ended December 31, 2020 and six months ended June 30, 2021 by company are as follows:

                   
    Ecessa   IVDesk   Total
January 1, 2020   $   $   $
                   
Acquisition     1,341,000     745,000     2,086,000
                   
December 31, 2020   $ 1,341,000   $ 745,000   $ 2,086,000
                 
June 30, 2021   $ 1,341,000   $ 745,000   $ 2,086,000
                   
Gross goodwill     1,341,000     745,000     2,086,000
Accumulated impairment loss            
Balance at June 30, 2021   $ 1,341,000   $ 745,000   $ 2,086,000

 

The Company’s identifiable intangible assets with finite lives are being amortized over their estimated useful lives and were as follows:

      June 30, 2021
    Gross Carrying Amount   Accumulated Amortization   Net
Trade Name/Trademark/Internet Domain Assets   $ 101,000   $ (9,000)   $ 92,000
Non-compete Agreements     80,000     (29,000)     51,000
Customer Relationships     1,010,000     (123,000)     887,000
Internally Developed Software     1,800,000     (279,000)     1,521,000
    $ 2,991,000   $ (440,000)   $ 2,551,000
                   
                   
      December 31, 2020
    Gross Carrying Amount   Accumulated Amortization   Net
Trade Name/Trademark/Internet Domain Assets   $ 90,000   $ (5,000)   $ 85,000
Non-compete Agreements     80,000     (16,000)     64,000
Customer Relationships     1,010,000     (34,000)     976,000
Internally Developed Software     1,800,000     (150,000)     1,650,000
    $ 2,980,000   $ (205,000)   $ 2,775,000

 

F-14

 

Amortization expense on these identifiable intangible assets was $236,000 and $0 in first six months of 2021 and 2020 respectively. The amortization expense is included in selling, general and administrative expenses. The estimated future amortization expense for identifiable intangible assets during the next five fiscal years is as follows:

 

       
Year Ending December 31:      
Q2 - Q4 2021   $ 221,000
2022     442,000
2023     426,000
2024     415,000
2025     381,000
Thereafter     666,000

NOTE 9 – CONTINGENCIES

In the ordinary course of business, the Company is exposed to legal actions and claims and incurs costs to defend against these actions and claims. Company management is not aware of any outstanding or pending legal actions or claims that could materially affect the Company’s financial position or results of operations.

 

On June 28, 2021, CSI entered into a securities purchase agreement with a group of institutional investors (the “PIPE Investors”) to make a $25.0 million private placement investment in CSI in connection with the closing of the previously announced merger transaction between CSI and Pineapple Energy, LLC (“Pineapple”). Proceeds of this investment will used primarily to fund Pineapple strategic initiatives. The closing of the financing is subject to approval of CSI’s shareholders and other customary conditions.

Under the terms of the securities purchase agreement, the PIPE Investors have agreed to purchase $25.0 million in newly authorized CSI Series A Convertible Preferred Stock convertible at a price of $3.40 per share into CSI common stock, with five year warrants to purchase an additional $25.0 million of common shares at that same price (the “PIPE Offering”). The PIPE Offering is expected to close immediately following the consummation of the CSI-Pineapple merger transaction (the “Merger”). Therefore the PIPE Investors will invest in the post-Merger company, will not be entitled to receive any cash dividends paid prior to closing and will not receive the Contingent Value Rights (“CVRs”) to be issued to pre-Merger CSI shareholders.

CSI and one of the PIPE Investors, CrowdOut Capital LLC (“CrowdOut”), which has agreed, subject to the satisfaction of certain closing conditions, to purchase $9.0 million of the $25.0 million of Series A Convertible Preferred Stock, have also entered into a non-binding letter of intent for a $20.0 million term loan (the “Debt Transaction”) to be provided by CrowdOut to the Company to assist the combined CSI-Pineapple company fund the acquisitions of Hawaii Energy Connection (“HEC”) and E-GEAR, which are expected to close concurrently with the Merger. CrowdOut’s obligation to consummate the transactions in the PIPE Offering, including its obligation to purchase the CSI Series A Convertible Preferred Stock and warrants from the Company, is expressly conditioned on CrowdOut closing and funding the Debt Transaction pursuant to fully executed credit documents that are mutually acceptable to CSI and CrowdOut.

The Series A Convertible Preferred Stock will have no liquidation or dividend preference over CSI common stock and no voting rights until after converted into CSI common stock. Assuming conversion of the Series A Convertible Preferred Stock, the PIPE Investors would own approximately 7.35 million shares of the Company’s outstanding common stock immediately following the closing of the PIPE Offering, representing approximately 22% of CSI’s outstanding Common Stock after giving effect to the issuance of shares in the Merger, and approximately 14.7 million shares assuming exercise of all the warrants for cash, representing

 

F-15

 

approximately 37% of CSI’s outstanding common stock after giving effect to the issuance of shares in the Merger and exercise of the warrants.

The Series A Convertible Preferred Stock and warrants will have anti-dilution provisions that would increase the number of shares issuable upon conversion or exercise, and lower the conversion or exercise price, if CSI issues equity securities at a price less than the conversion or exercise price at the time of such issuance. The securities purchase agreement also prohibits the combined company from conducting a new equity offering within 30 days of the closing, gives the PIPE Investors in the aggregate the right to purchase up to 25% of the equity securities in future CSI-Pineapple offerings within one year of closing and requires 30-day lock-up agreements of CSI common stock by certain CSI-Pineapple officers, directors and major shareholders following the closing. In connection with the transaction, CSI has agreed to file a registration statement on behalf of the PIPE Investors allowing them to resell the common stock into which the Series A Convertible Preferred Stock is convertible and the warrants are exercisable immediately after issuance. Closing is subject to the effectiveness of this registration statement and other customary closing conditions.

The foregoing descriptions of the (i) securities purchase agreement, (ii) the CSI Series A Convertible Preferred Stock, (iii) the warrant, (iv) the registration rights agreement, (v) the lock up agreement between the Company, certain CSI-Pineapple officers, directors and major shareholders and the PIPE Investors, and (vi) the letter agreement dated as of June 28, 2021 between Communications Systems, Inc. and CrowdOut Capital LLC confirming that the CrowdOut $9.0 million equity commitment is contingent on closing of the $20.0 million term loan do not purport to be complete and are qualified in their entirety by reference to the full text of these agreements, which are filed as Exhibit 10.1, 4.1, 4.2, 4.3, 10.2 and 10.3 to the Company’s Current Report on Form 8-K dated June 28, 2021 and are incorporated herein by reference.

NOTE 10 – DEBT

Line of Credit

 

On August 28, 2020, the Company entered into a Credit Agreement with Wells Fargo Bank, National Association, establishing a $5,000,000 line of credit facility agreement that replaced a prior facility. On October 29, 2020, the Company entered into a First Amendment to the Credit Agreement. Under the Credit Agreement, as amended, the Company has the ability to obtain one or more letters of credit in an aggregate amount up to $2,000,000, subject to the general terms of the credit agreement.

 

The Company had no outstanding borrowings against the line of credit, or the prior credit facility, at June 30, 2021 or December 31, 2020 and $2,101,000 of the credit line was available for use. Due to the revolving nature of loans under this credit facility, additional borrowings and periodic repayments and re-borrowings may be made until the maturity date. Interest on borrowings on the credit line is at LIBOR plus 1.25%, with a minimum LIBOR rate of 0.75%, (2.0% at June 30, 2021). By its terms, the Credit Agreement was scheduled to expire on August 28, 2021 and was secured by government securities owned and pledged by the Company. The Credit Agreement contained financial covenants including a tangible net worth minimum. The Company was in compliance with its financial covenants at June 30, 2021. The Company did not plan to renew the Credit Agreement upon its expiration, and terminated the Credit Agreement effective August 13, 2021.

NOTE 11 – INCOME TAXES

In the preparation of the Company’s consolidated financial statements, management calculates income taxes based upon the estimated effective rate applicable to operating results for the full fiscal year. This includes estimating the current tax liability as well as assessing differences resulting from different treatment of items for tax and book accounting purposes. These differences result in deferred tax assets and liabilities, which are

 

F-16

 

recorded on the balance sheet. Management analyzes these assets and liabilities regularly and assesses the likelihood that deferred tax assets will be recovered from future taxable income.

 

At June 30, 2021 there was $117,000 of net uncertain tax benefit positions that would reduce the effective income tax rate if recognized. The Company records interest and penalties related to income taxes as income tax expense in the condensed consolidated statements of loss and comprehensive loss.

 

The Company is subject to U.S. federal income tax as well as income tax of multiple state and foreign jurisdictions. The tax years 2017-2020 remain open to examination by the Internal Revenue Service and the years 2016-2020 remain open to examination by various state tax departments. The tax years from 2017-2020 remain open in Costa Rica.

 

The Company’s effective income tax rate was (0.0%) for the first six months of 2021. The effective tax rate differs from the federal tax rate of 21% due to state income taxes, foreign tax rate differences, foreign losses not deductible for U.S. income tax purposes, the effect of uncertain income tax positions, stock compensation windfalls and changes in valuation allowances related to deferred tax assets. The foreign operating losses may ultimately be deductible in the countries in which they occurred; however, the Company has not recorded a deferred tax asset for these losses due to uncertainty regarding the eventual realization of the benefit. The effect of the foreign operations was an overall rate decrease of approximately 0.5% for the six months ended June 30, 2021. There were no additional uncertain tax positions identified in the first six months of 2021. The Company's effective income tax rate for the six months ended June 30, 2020 was 0.2%, and differed from the federal tax rate due to state income taxes, foreign tax rate differences, foreign losses not deductible for U.S. income tax purposes, changes in the reserve for uncertain income tax positions, provisions for interest charges for uncertain income tax positions, stock compensation windfalls and changes in valuation allowances related to deferred tax assets.

NOTE 12 – SEGMENT INFORMATION

The Company classifies its businesses into two segments as follows:

 

Electronics & Software: designs, develops and sells Intelligent Edge solutions that provide connectivity and power through PoE products and actionable intelligence to end devices in an IoT ecosystem through embedded and cloud-based management software. In addition, this segment continues to generate revenue from its traditional products consisting of media converters, NICs, and Ethernet switches that offer the ability to affordably integrate the benefits of fiber optics into any data network; and

 

Services & Support: provides technology solutions that address prevalent IT challenges, including network resiliency, security products and services, network virtualization, and cloud migrations, IT managed services, wired and wireless network design and implementation, and converged infrastructure configuration, deployment and management.

 

Management has chosen to organize the Company and disclose reportable segments based on our products and services. Intersegment revenues are eliminated upon consolidation. “Other” includes non-allocated corporate overhead costs. As a result of our treatment of Suttle as discontinued operations, “Other” includes amounts previously allocated to Suttle that do not meet the criteria to be included in income from discontinued operations.

 

F-17

 

Information concerning the Company’s continuing operations in these two segments for the three-month periods ended June 30, 2021 and 2020 are as follows:

                             
  Electronics &   Services &         Intersegment    
  Software   Support   Other   Eliminations   Total
Three Months Ended June 30, 2021                            
Sales $ 9,307,000   $ 1,833,000   $   $ (143,000)   $ 10,997,000
Cost of sales   5,204,000     1,185,000             6,389,000
Gross profit   4,103,000     648,000         (143,000)     4,608,000
Selling, general and                            
administrative expenses   3,592,000     878,000     663,000     (143,000)     4,990,000
Transaction costs           1,279,000         1,279,000
Operating income (loss)   511,000     (230,000)     (1,942,000)         (1,661,000)
Other (expense) income   (38,000)     16,000     (257,000)         (279,000)
Income (loss) before income tax $ 473,000   $ (214,000)   $ (2,199,000)   $   $ (1,940,000)
                             
Depreciation and amortization $ 68,000   $ 139,000   $ 38,000   $   $ 245,000
                             
Capital expenditures $   $ 1,000   $   $   $ 1,000
                             
Assets $ 14,819,000   $ 7,624,000   $ 29,581,000   $ (27,000)   $ 51,997,000
                             
                             
  Electronics &   Services &         Intersegment    
  Software   Support   Other   Eliminations   Total
Three Months Ended June 30, 2020                            
Sales $ 8,287,000   $ 1,525,000   $   $ (184,000)   $ 9,628,000
Cost of sales   5,192,000     982,000         (26,000)     6,148,000
Gross profit   3,095,000     543,000         (158,000)     3,480,000
Selling, general and                            
administrative expenses   3,638,000     483,000     769,000     (158,000)     4,732,000
Transaction costs           394,000         394,000
Operating (loss) income   (543,000)     60,000     (1,163,000)         (1,646,000)
Other income   3,000         276,000         279,000
(Loss) income before income tax $ (540,000)   $ 60,000   $ (887,000)   $   $ (1,367,000)
                             
Depreciation and amortization $ 76,000   $ 19,000   $ 123,000   $   $ 218,000
                             
Capital expenditures $ 24,000   $   $ 8,000   $   $ 32,000
                             
Assets $ 16,825,000   $ 6,569,000   $ 33,984,000   $ (27,000)   $ 57,351,000

 

 

F-18

 

                             
  Electronics &   Services &         Intersegment    
  Software   Support   Other   Eliminations   Total
Six Months Ended June 30, 2021                            
Sales $ 17,671,000   $ 3,772,000   $   $ (287,000)   $ 21,156,000
Cost of sales   9,985,000     2,347,000             12,332,000
Gross profit   7,686,000     1,425,000         (287,000)     8,824,000
Selling, general and                            
administrative expenses   7,200,000     1,857,000     1,391,000     (287,000)     10,161,000
Transaction costs           2,471,000         2,471,000
Operating income (loss)   486,000     (432,000)     (3,862,000)         (3,808,000)
Other (expense) income   (57,000)     16,000     (251,000)         (292,000)
Income (loss) before income tax $ 429,000   $ (416,000)   $ (4,113,000)   $   $ (4,100,000)
                             
Depreciation and amortization $ 135,000   $ 293,000   $ 77,000   $   $ 505,000
                             
Capital expenditures $ 4,000   $ 6,000   $   $   $ 10,000
                             
                             
  Electronics &   Services &         Intersegment      
  Software   Support   Other   Eliminations   Total
Six Months Ended June 30, 2020                            
Sales $ 16,823,000   $ 2,352,000   $   $ (384,000)   $ 18,791,000
Cost of sales   9,999,000     1,602,000         (27,000)     11,574,000
Gross profit   6,824,000     750,000         (357,000)     7,217,000
Selling, general and                            
administrative expenses   7,535,000     811,000     1,683,000     (357,000)     9,672,000
Transaction costs           415,000         415,000
Operating loss   (711,000)     (61,000)     (2,098,000)         (2,870,000)
Other income (expense)   17,000         673,000         690,000
Loss before income tax $ (694,000)   $ (61,000)   $ (1,425,000)   $   $ (2,180,000)
                             
Depreciation and amortization $ 147,000   $ 32,000   $ 251,000   $   $ 430,000
                             
Capital expenditures $ 68,000   $ 1,000   $ 20,000   $   $ 89,000

NOTE 13 – NET LOSS PER SHARE

Basic net loss per common share is based on the weighted average number of common shares outstanding during each period and year. Diluted net income per common share takes into effect the dilutive effect of potential common shares outstanding. The Company’s only potential common shares outstanding are stock options and shares associated with the long-term incentive compensation plans, which resulted in no dilutive effect for the three and six months ended June 30, 2021 and 2020.  The Company calculates the dilutive effect of outstanding options using the treasury stock method. Due to the net losses in the first three and six months of 2021, there was no dilutive impact from stock options or unvested shares. Options totaling 328,229 and 421,208 were excluded from the calculation of diluted earnings per share for the three and six months ended June 30, 2021, respectively because the exercise price was greater than the average market price of common stock during the period and there were no shares from deferred stock awards that would not have been included for the three and six months ended June 30, 2021, because of unmet performance conditions. Options totaling 614,114 and 634,114 were excluded from the calculation of diluted earnings per share for the three and six months ended June 30, 2020, respectively because the exercise price was greater than the average market price of common stock during the period and deferred stock awards totaling 117,688 shares would not have been included for the three and six months ended June 30, 2020, because of unmet performance conditions.

F-19

 

NOTE 14 – FAIR VALUE MEASUREMENTS

The accounting guidance establishes a valuation hierarchy for disclosure of the inputs to valuation used to measure fair value. This hierarchy prioritizes the inputs into three broad levels as follows:

 

Level 1 – Observable inputs that reflect unadjusted quoted prices for identical assets or liabilities in active markets that the Company has the ability to access at the measurement date.

 

Level 2 – Observable inputs such as quoted prices for similar instruments and quoted prices in markets that are not active, and inputs that are directly observable or can be corroborated by observable market data. The types of assets and liabilities included in Level 2 are typically either comparable to actively traded securities or contracts, such as treasury securities with pricing interpolated from recent trades of similar securities, or priced with models using highly observable inputs, such as commodity options priced using observable forward prices and volatilities.

 

Level 3 – Significant inputs to pricing that have little or no observability as of the reporting date. The types of assets and liabilities included in Level 3 are those with inputs requiring significant management judgment or estimation, such as the complex and subjective models and forecasts used to determine the fair value of financial instruments.

Financial assets and liabilities measured at fair value on a recurring basis as of June 30, 2021 and December 31, 2020, are summarized below:

                       
  June 30, 2021
                       
  Level 1   Level 2   Level 3   Total Fair Value
Cash equivalents:                      
Money Market Funds $ 11,564,000   $   $   $ 11,564,000
Subtotal   11,564,000             11,564,000
                       
Short-term investments:                      
Corporate Notes/Bonds       1,705,000         1,705,000
Subtotal       1,705,000         1,705,000
                       
Long-term investments:                      
Corporate Notes/Bonds       4,523,000         4,523,000
Convertible debt           374,000     374,000
Subtotal       4,523,000     374,000     4,897,000
                       
Total $ 11,564,000   $ 6,228,000   $ 374,000   $ 18,166,000

 

F-20

 

  December 31, 2020
                       
  Level 1   Level 2   Level 3   Total Fair Value
Cash equivalents:                      
Money Market Funds $ 9,424,000   $   $   $ 9,424,000
Subtotal   9,424,000             9,424,000
                       
Short-term investments:                      
Commercial Paper       700,000         700,000
Corporate Notes/Bonds       2,059,000         2,059,000
Subtotal       2,759,000         2,759,000
                       
Long-term investments:                      
Corporate Notes/Bonds       5,605,000         5,605,000
Convertible debt           605,000     605,000
Subtotal       5,605,000     605,000     6,210,000
                       
Current Liabilities:                      
Contingent Consideration           (550,000)     (550,000)
Subtotal           (550,000)     (550,000)
                       
Total $ 9,424,000   $ 8,364,000   $ 55,000   $ 17,843,000

The estimated fair value of contingent consideration as of December 31, 2020 was $550,000, as noted above. The estimated fair value is considered a level 3 measurement because the probability weighted discounted cash flow methodology used to estimate fair value includes the use of significant unobservable inputs, primarily the contractual contingent consideration revenue targets and assumed probabilities. The Company paid the full amount of the contingent consideration during the first quarter of 2021 and there was no liability at June 30, 2021.

We record transfers between levels of the fair value hierarchy, if necessary, at the end of the reporting period. There were no transfers between levels during the three months ended June 30, 2021.

NOTE 15 – RECENT ACCOUNTING PRONOUNCEMENTS

In June 2016, FASB issued ASU 2016-13, "Financial Instruments - Credit Losses (Topic 326), Measurement of Credit Losses on Financial Instruments." The amendments in this update replace the incurred loss impairment methodology in current U.S. GAAP with a methodology that reflects expected credit losses. This ASU is intended to provide financial statement users with more decision-useful information about the expected credit losses and is effective for annual periods and interim periods for those annual periods beginning after December 15, 2022, which for us is the first quarter ending March 31, 2023. Entities may early adopt beginning after December 15, 2018. We are currently evaluating the impact of the adoption of ASU 2016-13 on our consolidated financial statements.

NOTE 16 – SUBSEQUENT EVENTS

On August 2, 2021, the Company and Lantronix, Inc. (“Lantronix”) completed the sale by CSI to Lantronix of all of the issued and outstanding stock of CSI’s wholly owned subsidiary, Transition Networks, Inc., and the entire issued share capital of its wholly owned subsidiary, Transition Networks Europe Limited (collectively with Transition Networks, Inc., the “TN Companies”), pursuant to the securities purchase agreement dated April 28, 2021 (“E&S Sale Transaction”).

 

F-21

 

At the closing of the E&S Sale Transaction, Lantronix paid CSI approximately $24,160,000 in cash, which was based on $25,027,566 base purchase price, as adjusted by estimated closing net working capital. This amount may be further adjusted to reflect the final closing net working capital amount.

Under the securities purchase agreement, Lantronix has also agreed to pay CSI, if earned, earnout payments of up to $7.0 million payable following two successive 180-day intervals after the closing of the E&S Sale Transaction based on revenue targets for the business of the TN Companies as specified in the securities purchase agreement, subject to certain adjustments and allocations as further described in the securities purchase agreement. Concurrently with the closing of the transaction, CSI and Lantronix entered into a transition services agreement under which CSI will perform administrative and IT services, and lease office, warehouse and production space to Lantronix at CSI’s Minnetonka, Minnesota facility for a period of up to twelve months.

 

In contemplation of the closing of the E&S Sale Transaction, the employment of approximately 75 employees of CSI or the TN Companies were terminated. As provided in the securities purchase agreement, CSI is responsible for any severance obligations arising out of such termination. Lantronix hired 63 former employees effective as of the closing of the E&S Sale Transaction as described in the securities purchase agreement. The Company will record a charge in the third quarter of 2021 relating to employee severance payments that is expected to be approximately $1,250,000. The Company also expects to record a non-cash charge of approximately $325,000 relating to the acceleration and settlement of outstanding equity awards under the 2011 Executive Incentive Compensation Plan as described below.

 

The closing of the E&S Sale Transaction constituted a “Change in Control” as defined in the Company’s 2011 Executive Incentive Compensation Plan (“2011 Plan”) on August 2, 2021, the closing date of the E&S Sale Transaction. In accordance with the determinations and approvals of the Compensation Committee, effective on August 1, 2021, each Incentive Award granted and outstanding under the 2011 Plan and not otherwise forfeited or expired in accordance with its terms was fully vested and exercisable and any restrictions lapsed. After giving effect to such acceleration and vesting, on the August 2, 2021 closing date:

All then-outstanding restricted stock units (RSUs”) were settled by exchanging them for the equivalent number of shares of the Company’s common stock specified in the respective RSU award agreements, with the shares of the Company’s common stock issued on settlement of the RSUs being issued and outstanding as of the closing date.
All then-outstanding stock options having an exercise price less than the Fair Market Value (as defined in the 2011 Plan) on the closing date were settled by exchanging the options for a “net” number of shares of the Company’s common stock as if exercised on a net or cashless basis as provided in the 2011 Plan (for administrative convenience, rounded up to the next whole share), with the net shares of the Company’s common stock issued on settlement of these stock options being issued and outstanding as of the closing date.
Following the disposition of the outstanding RSUs and stock options as described above, these Incentive Awards were terminated and cancelled as of the closing date.
All then-outstanding stock options having an exercise price equal to or greater than the Fair Market Value on the closing date were terminated and cancelled as of the closing date without any payment therefor.
F-22

 

Any required tax withholding not otherwise satisfied in cash on the closing date is being satisfied by the Company reducing the shares otherwise issuable to the holder of the Incentive Award by that number of whole shares (rounded up to the nearest whole share) having a Fair Market Value (as defined in the 2011 Plan) equal to the amount of any tax withholding required.

Immediately prior to the closing date, there were outstanding under the 2011 Plan stock options to purchase 995,530 shares of CSI common stock and RSUs for 98,705 shares of CSI common stock. Immediately following the closing date, there were no equity incentive awards outstanding under the 2011 Plan or otherwise.

 

F-23

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the shareholders and the board of directors of Communications Systems, Inc.:

 

Opinion on the Financial Statements

 

We have audited the accompanying consolidated balance sheets of Communications Systems, Inc. and subsidiaries (the “Company”) as of December 31, 2020 and 2019, the related consolidated statements of income (loss) and comprehensive income (loss), changes in stockholders’ equity, and cash flows, for each of the two years in the period ended December 31, 2020, and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and 2019, and the results of their operations and their cash flows for each of the two years in the period ended December 31, 2020, in conformity with accounting principles generally accepted in the United States of America.

 

Basis for Opinion

 

These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

 

Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.

 

Critical Audit Matters

 

The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.

 

Valuation of Intangible Assets Acquired in Business Combinations

 

Critical Audit Matter Description

 

As described in Note 5 to the consolidated financial statements, the Company completed the acquisitions of Ecessa Corporation and IVDesk Minnesota, Inc. during the year ended December 31, 2020. The aggregate consideration for the acquisitions was $6,010,000. Both acquisitions were accounted for as business combinations. The Company measured the assets acquired and liabilities assumed at fair value, which resulted in the recognition of intangible assets totaling $2,980,000, which consisted primarily of internally developed software of $1,800,000 and customer relationships of $1,010,000. The Company has also recorded goodwill of $2,086,000 as a result of these acquisitions.

 

The valuation of the intangible assets is complex and judgmental due to the use of subjective assumptions in the valuation models used by management when determining the estimated fair values of the assets. The determination of the fair values of the intangible assets requires management to make significant estimates and assumptions related to forecasts of future revenues, expenses, discount rates, risk-free rates, weighted-average cost of capital, equity risk premium, and royalty rates.

 

F-24

 

 

Auditing management’s valuation of the acquired intangible assets is complex due to the judgments required to evaluate management’s previously noted estimates and assumptions.

 

How We Addressed the Matter in Our Audit

 

The primary procedures we performed to address this critical audit matter included:

 

Obtained an understanding of the design and implementation of internal controls relating to the evaluation of the assumptions used to estimate the fair value of the intangible assets acquired, including controls addressing:

Management’s evaluation of the identification of the assets acquired.

Management’s evaluation of the completeness, accuracy and reasonableness of the prospective financial information used to determine the fair values of assets acquired.

Management’s evaluation of the completeness and accuracy of key assumptions and inputs used by a third-party valuation specialist, including discount rate, risk-free rate, weighted-average cost of capital, equity risk premium, and royalty rates used to determine fair values.

Management’s evaluation of the clerical accuracy of the model used to determine the fair values of assets acquired.

Substantively tested, with the assistance of firm personnel with experience in the application of fair value and valuation methodologies, the appropriateness of the judgments and assumptions used in management’s estimation process for determining the fair value of the intangible assets acquired, including:

Tested the mathematical accuracy of the calculations performed along with assessing the completeness of the information used in the calculations.

Evaluated the appropriateness of the valuation methodologies used, as well as the key assumptions and inputs used, including discount rate, risk-free rate, weighted-average cost of capital, equity risk premium and royalty rates.

Performed sensitivity analyses to evaluate the changes in the fair value of the intangible assets that would result from changes in the assumptions.

Compared significant assumptions used by management to current industry and competitor data, historical results, third-party market data and evidence obtained in other areas of the audit.

 

Assessment of Impairment of Long-Lived Assets

 

Critical Audit Matter Description

 

As described in Note 1 to the consolidated financial statements, the Company reviews its long-lived assets periodically to determine whether indicators of potential impairment exist. Potential impairment is determined by comparing the carrying value of the assets with the expected future cash flows to be provided by operating activities of the business or related asset groups. If the sum of the expected future net cash flows is less than the carrying value, an impairment loss would be measured by comparing the amount by which the carrying value exceeds the fair value of the asset. Management identified triggering events during the year ended December 31, 2020, that indicated that long-lived assets could potentially be impaired, and performed an impairment test as of December 31, 2020.

 

While the impairment test did not result in the recording of any impairment loss, the impairment test is complex and judgmental due to the use of subjective assumptions used by management when determining the asset groups to be evaluated for impairment, estimating expected future cash flows to be provided by operating activities of the identified asset groups, and estimating fair values of the assets or asset groups when applicable.

 

Auditing management’s impairment analysis is complex due to the judgments required to evaluate management’s forecasts of expected future cash flows and estimated fair values when applicable.

 

How We Addressed the Matter in Our Audit

 

The primary procedures we performed to address this critical audit matter included:

 

Obtained an understanding of the design and implementation of internal controls relating to the evaluation of the assumptions used by management in conducting its impairment analysis, including controls addressing:

Management’s evaluation of the asset groups evaluated for potential impairment.

Management’s evaluation of the accuracy and reasonableness of the net cash flows expected to be provided by operating activities of the asset groups.

 

F-25

 

 

Management’s evaluation of the completeness and accuracy of information used to determine fair values of assets or asset groups, including the methodologies used to determine fair values, when applicable.

Substantively tested the appropriateness of the judgments and assumptions used by management in conducting its impairment analysis, including:

Confirmed the appropriateness of the asset groups evaluated in performing management’s impairment analysis.

Tested management’s assumptions used in estimating the net cash flows expected to be provided by operating activities of the asset groups, including the completeness and accuracy of the underlying data supporting the assumptions.

Utilized an internal valuation specialist to assist in testing the Company’s valuation model and significant assumptions related to the fair value of certain long-lived assets.

Evaluated audit evidence from events and transactions occurring after the measurement date.

 

Goodwill Impairment Evaluation

 

Critical Audit Matter Description

 

As described in Note 1 to the consolidated financial statements, the Company tests goodwill for impairment annually, or more frequently if events have occurred or circumstances exist that indicate the carrying amount of goodwill may not be recoverable. Due to the presence of the triggering events noted in the Assessment of Impairment of Long-Lived Assets critical audit matter, management performed an impairment test for goodwill as of December 31, 2020. The Company performed qualitative assessments to determine whether It was more likely than not (that is, a likelihood of more than 50 percent) that the fair value of the reporting units were less than their carrying amounts, including goodwill.

 

While the impairment test did not result in the recording of any impairment loss, the identification of triggering events indicates potential impairment of goodwill, which requires management to make significant judgments in performing its assessment including the evaluation of macroeconomic conditions, industry and market conditions, cost factors, overall financial performance, other entity-specific events, events affecting the reporting units, and trends in the Company’s share price.

 

Auditing management’s impairment analysis is complex due to the judgments required to evaluate management’s assessment of those factors identified above.

 

How We Addressed the Matter in Our Audit

 

The primary procedures we performed to address this critical audit matter included:

 

Obtained an understanding of the design and implementation of internal controls relating to the evaluation of the assumptions used by management in conducting its impairment analysis, including controls addressing:

Management’s assessment of identified triggering events indicating potential impairment.

Management’s evaluation of the reporting units evaluated for potential impairment.

Management’s assessment of qualitative factors that may indicate potential impairment of goodwill.

Substantively tested the appropriateness of the judgments and assumptions used by management in conducting its impairment analysis, including:

Confirmed the appropriateness of the reporting units evaluated in performing management’s impairment analysis.

Evaluated the factors management considered in its qualitative assessment to determine that goodwill was not impaired, including the evaluation of macroeconomic conditions, industry and market conditions, cost factors, the past financial performance of the reporting units, the projected financial performance of the reporting units, other entity-specific events, events affecting the reporting units, and trends in the Company’s share price.

 

/s/ Baker Tilly US, LLP

(formerly known as Baker Tilly Virchow Krause, LLP)

We have served as the Company’s auditor since 2017.

Minneapolis, Minnesota

March 31, 2021

 

F-26

 

 

COMMUNICATIONS SYSTEMS, INC. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

ASSETS  

 

   December 31   December 31 
 ASSETS  2020   2019 
CURRENT ASSETS:          
Cash and cash equivalents  $13,092,484   $13,928,504 
Restricted cash       679,006 
Investments   2,759,024    9,449,650 
Trade accounts receivable, less allowance for doubtful accounts of $121,000 and $154,000, respectively   10,177,445    10,242,405 
Inventories   8,696,880    8,531,112 
Prepaid income taxes   35,948    72,994 
Other current assets   996,472    1,160,865 
Current assets held for sale       5,337,274 
TOTAL CURRENT ASSETS   35,758,253    49,401,810 
           
PROPERTY, PLANT AND EQUIPMENT,  net   7,242,072    8,238,089 
OTHER ASSETS:          
Investments   7,109,212    250,000 
Goodwill   2,086,393     
Deferred income taxes       9,534 
Right of use asset   413,415    367,909 
Intangible assets   2,775,361     
Other assets   171,619     
Noncurrent assets held for sale       883,370 
TOTAL OTHER ASSETS   12,556,000    1,510,813 
TOTAL ASSETS  $55,556,325   $59,150,712 
LIABILITIES AND STOCKHOLDERS’ EQUITY          
CURRENT LIABILITIES:          
Accounts payable  $2,378,449   $3,720,445 
Accrued compensation and benefits   2,298,075    3,517,331 
Operating lease liability   213,553    115,935 
Other accrued liabilities   1,524,515    2,602,752 
Accrued consideration   550,000     
Dividends payable   16,147    200,363 
Deferred revenue   456,912     
Current liabilities held for sale       1,193,218 
TOTAL CURRENT LIABILITIES   7,437,651    11,350,044 
LONG TERM LIABILITIES:          
Long-term compensation plans   116,460    164,348 
Operating lease liability   197,308    244,038 
Deferred revenue   310,179     
TOTAL LONG-TERM LIABILITIES   623,947    408,386 
COMMITMENTS AND CONTINGENCIES  (Footnote 10)          
STOCKHOLDERS’ EQUITY          
Preferred stock, par value $1.00 per share; 3,000,000 shares authorized; none issued          
Common stock, par value $.05 per share; 30,000,000 shares authorized; 9,321,927 and 9,252,749 shares issued and outstanding, respectively   466,096    462,637 
Additional paid-in capital   43,572,114    42,977,914 
Retained earnings   4,135,284    4,649,395 
Accumulated other comprehensive loss   (678,767)   (697,664)
TOTAL STOCKHOLDERS’ EQUITY   47,494,727    47,392,282 
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY  $55,556,325   $59,150,712 

 

The accompanying notes are an integral part of the consolidated financial statements.

 

F-27

 

 

COMMUNICATIONS SYSTEMS, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF INCOME (LOSS) AND COMPREHENSIVE INCOME (LOSS)

           

 

               
   Year Ended December 31 
   2020   2019 
         
Sales  $42,575,546   $50,906,179 
Cost of sales   25,369,118    28,720,367 
Gross profit   17,206,428    22,185,812 
Operating expenses:          
Selling, general and administrative expenses   19,218,922    22,176,598 
Acquisition costs   684,856     
Total operating expenses   19,903,778    22,176,598 
Operating (loss) income from continuing operations   (2,697,350)   9,214 
Other income (expenses):          
Investment and other income   661,754    284,944 
Gain (loss) on sale of assets   288,778    (20,368)
Interest and other expense   (28,514)   (38,440)
Other income,  net   922,018    226,136 
Operating (loss) income from continuing operations before income taxes   (1,775,332)   235,350 
Income tax expense (benefit)   20,342    (15,269)
Net (loss) income from continuing operations   (1,795,674)   250,619 
Net income from discontinued operations, net of tax   1,624,016    6,218,430 
Net (loss) income   (171,658)   6,469,049 
Other comprehensive income (loss), net of tax:          
Unrealized gains/(losses) on available-for-sale securities   9,249    (1,793)
Foreign currency translation adjustment   9,648    55,422 
Total other comprehensive income   18,897    53,629 
Comprehensive (loss) income  $(152,761)  $6,522,678 
           
Basic net (loss) income per share:          
Continuing operations  $(0.19)  $0.03 
Discontinued operations   0.17    0.67 
   $(0.02)  $0.70 
           
Diluted net (loss) income per share:          
Continuing operations  $(0.19)  $0.03 
Discontinued operations   0.17    0.66 
   $(0.02)  $0.69 
           
Weighted Average Basic Shares Outstanding   9,322,672    9,272,259 
Weighted Average Dilutive Shares Outstanding   9,322,672    9,337,422 

 

The accompanying notes are an integral part of the consolidated financial statements.

 

F-28

 

 

COMMUNICATIONS SYSTEMS, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY

 

                         
               Retained   Accumulated     
           Additional   Earnings   Other     
   Common Stock   Paid-in   (Accumulated   Comprehensive     
   Shares   Amount   Capital   Deficit)   Income (Loss)   Total 
BALANCE AT DECEMBER 31, 2018   9,158,438   $457,922   $42,680,499   $(734,001)  $(751,293)  $41,653,127 
Net income               6,469,049        6,469,049 
Issuance of common stock under                              
Employee Stock Purchase Plan   34,469    1,723    93,437            95,160 
Issuance of common stock to                              
Employee Stock Ownership Plan   132,826    6,641    262,995            269,636 
Issuance of common stock under                              
Executive Stock Plan   156,525    7,826    612,424            620,250 
Share based compensation           412,776            412,776 
Other share retirements   (229,509)   (11,475)   (1,084,217)   (326,556)       (1,422,248)
Shareholder dividends ($0.08 per share)               (759,097)       (759,097)
Other comprehensive income                   53,629    53,629 
BALANCE AT DECEMBER 31, 2019   9,252,749    462,637    42,977,914    4,649,395    (697,664)   47,392,282 
Net loss               (171,658)       (171,658)
Issuance of common stock under                              
Employee Stock Purchase Plan   20,279    1,014    93,882            94,896 
Issuance of common stock to                              
Employee Stock Ownership Plan   66,059    3,303    404,281            407,584 
Issuance of common stock under                              
Executive Stock Plan   65,952    3,298    20,720            24,018 
Share based compensation           463,274            463,274 
Other share retirements   (83,112)   (4,156)   (387,957)   37,213        (354,900)
Shareholder dividends ($0.04 per share)               (379,666)       (379,666)
Other comprehensive income                   18,897    18,897 
BALANCE AT DECEMBER 31, 2020   9,321,927   $466,096   $43,572,114   $4,135,284   $(678,767)  $47,494,727 

 

The accompanying notes are an integral part of the consolidated financial statements.

 

F-29

 

 

COMMUNICATIONS SYSTEMS, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

 

               
   Year Ended December 31 
   2020   2019 
CASH FLOWS FROM OPERATING ACTIVITIES:          
Net (loss) income  $(171,658)  $6,469,049 
Net income from discontinued operations, net of tax   1,624,016    6,218,430 
Net (loss) income from continuing operations   (1,795,674)   250,619 
Adjustments to reconcile net (loss) income to net cash (used in) provided by operating activities:          
Depreciation and amortization   962,307    1,032,797 
Share based compensation   463,274    412,776 
Deferred taxes   9,534    9,534 
(Gain) loss on sale of assets   (284,273)   20,368 
Changes in assets and liabilities:          
Trade accounts receivables   261,192    (618,663)
Inventories   (83,977)   2,469,800 
Prepaid income taxes   37,046    75,298 
Other assets   339,712    1,348,481 
Accounts payable   (1,392,457)   (381,293)
Accrued compensation and benefits   (939,758)   1,057,428 
Other accrued liabilities   (714,425)   (515,279)
Income taxes payable       (28,267)
Net cash (used in) provided by operating activities - continuing operations   (3,137,499)   5,133,599 
Net cash (used in) provided by operating activities - discontinued operations   (1,546,030)   5,097,537 
Net cash (used in) provided by operating activities   (4,683,529)   10,231,136 
           
CASH FLOWS FROM INVESTING ACTIVITIES:          
Capital expenditures   (249,727)   (424,988)
Acquisition of business, net of cash acquired   (4,797,919)    
Purchases of investments   (18,665,534)   (18,673,530)
Proceeds from the sale of fixed assets   435,000     
Proceeds from the sale of investments   18,506,198    8,972,087 
Net cash used in investing activities - continuing operations   (4,771,982)   (10,126,431)
Net cash provided by investing activities - discontinued operations   8,702,213    4,904,456 
Net cash provided by (used in) investing activities   3,930,231    (5,221,975)
CASH FLOWS FROM FINANCING ACTIVITIES:          
Cash dividends paid   (563,882)   (743,276)
Proceeds from issuance of common stock, net of shares withheld   118,914    715,410 
Purchase of common stock   (354,900)   (1,422,248)
Net cash used in financing activities   (799,868)   (1,450,114)
EFFECT OF FOREIGN EXCHANGE RATE CHANGES ON CASH   38,140    (7,963)
NET (DECREASE) INCREASE IN CASH, CASH EQUIVALENTS AND RESTRICTED CASH   (1,515,026)   3,551,084 
CASH, CASH EQUIVALENTS AND RESTRICTED CASH AT BEGINNING OF YEAR   14,607,510    11,056,426 
CASH, CASH EQUIVALENTS AND RESTRICTED CASH AT END OF YEAR  $13,092,484   $14,607,510 
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:          
Income taxes refunded  $(27,722)  $(73,151)
Interest paid   26,327    37,974 
Dividends declared not paid   16,147    200,363 
Capital expenditures in accounts payable       10,663 
Operating right of use assets obtained in exchange for lease obligations   208,650    449,995 
Accrued consideration   550,000     

 

The accompanying notes are an integral part of the consolidated financial statements.

 

F-30

 

 

COMMUNICATIONS SYSTEMS, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

Years Ended December 31, 2020 and 2019

 

NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Description of business: Communications Systems, Inc. (herein collectively referred to as “CSI,” “our,” “we” or the “Company”) is a Minnesota corporation organized in 1969 that classifies its business into two segments: (1) the Electronics & Software segment (consisting of US-based subsidiary Transition Networks and UK-based subsidiary Net2Edge) which (i) manufactures and sells solutions that provide actionable intelligence, power and connectivity at the edge of networks through PoE products, software and services as well as traditional products such as media converters, network adapters and other connectivity products and (ii) designs, develops, and sells edge network access products, TDM (time-division multiplexing) over IP and other circuit emulation solutions, along with specialized cloud-based software solutions, primarily within the telecommunications market; and (2) the Services and Support segment (consisting of subsidiaries JDL and Ecessa), which (i) provides technology solutions including virtualization, managed services, wired and wireless network design and implementation, and hybrid cloud infrastructure and deployment and (ii) designs, develops, and sells SD-WAN (software-designed wide-area network) solutions.

 

The Company classifies its businesses into two segments. Non-allocated general and administrative expenses are separately accounted for as “Other” in the Company’s segment reporting. Intersegment revenues are eliminated upon consolidation.

 

Principles of consolidation: The consolidated financial statements include the accounts of the Company and its subsidiaries. All intercompany transactions and accounts have been eliminated.

 

Use of estimates: The presentation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The Company uses estimates based on the best information available in recording transactions and balances resulting from operations. Actual results could differ from those estimates. The Company’s estimates consist principally of reserves for doubtful accounts, sales returns, warranty costs, asset impairment evaluations, accruals for compensation plans, self-insured medical and dental accruals, lower of cost or market inventory adjustments, provisions for income taxes and deferred taxes, and depreciable lives of fixed assets.

 

Cash equivalents: For purposes of the consolidated statements of cash flows, the Company considers all highly liquid investments with a maturity of three months or less at the time of purchase to be cash equivalents. As of December 31, 2020, the Company had $13,092,000 in cash and cash equivalents. Of this amount, $9,424,000 was invested in short-term money market funds that are not considered to be bank deposits and are not insured or guaranteed by the federal deposit insurance company (FDIC) or other government agency. These money market funds seek to preserve the value of the investment at $1.00 per share; however, it is possible to lose money investing in these funds. The remainder is operating cash and certificates of deposit which are fully insured through the FDIC.

 

Investments: Investments consist of corporate notes and bonds, and commercial paper that are traded on the open market and are classified as available-for-sale and minority investments in strategic technology companies. Available-for-sale investments are reported at fair value with unrealized gains and losses excluded from operations and reported as a separate component of stockholders’ equity, net of tax (see Accumulated other comprehensive loss below).

 

Inventories: Inventories are stated at the lower of cost or net realizable value. Cost is determined by the first-in, first-out method. Provision to reduce inventories to the lower of cost or net realizable value is made based on a review of excess and obsolete inventories, estimates of future sales, examination of historical consumption rates and the related value of component parts.

 

F-31

 

 

Property, plant and equipment: Property, plant and equipment are recorded at cost. Depreciation is computed using the straight-line method. Depreciation included in cost of sales and selling, general and administrative expenses for continuing operations was $757,000 and $1,028,000 for 2020 and 2019, respectively. Maintenance and repairs are charged to operations and additions or improvements are capitalized. Items of property sold, retired or otherwise disposed of are removed from the asset and accumulated depreciation accounts and any gains or losses on disposal are reflected in operations.

 

Goodwill and Other Intangible Assets: Goodwill represents the amount by which the purchase prices (including liabilities assumed) of acquired businesses exceed the estimated fair value of the net tangible assets and separately identifiable assets of these businesses. Goodwill and intangible assets with indefinite useful lives are not amortized but are tested at least annually for impairment. The Company reassesses the value of our reporting units and related goodwill balances annually on April 1 and at other times if events have occurred or circumstances exist that indicate the carrying amount of goodwill may not be recoverable.

 

Recoverability of long-lived assets: The Company reviews its long-lived assets periodically when impairment indicators exist as required under generally accepted accounting principles. Potential impairment is determined by comparing the carrying value of the assets with expected net cash flows expected to be provided by operating activities of the business or related products. If the sum of the expected future net cash flows is less than the carrying value, an impairment loss would be measured by comparing the amount by which the carrying value exceeds the fair value of the asset.

 

Warranty: The Company reserves for the estimated cost of product warranties at the time revenue is recognized. We estimate the costs of our warranty obligations based on our warranty policy or applicable contractual warranty, historical experience of known product failure rates, and use of materials and service delivery costs incurred in correcting product failures. Management reviews the estimated warranty liability on a quarterly basis to determine its adequacy.

 

The following table presents the changes in the Company’s warranty liability, included in other accrued liabilities in the consolidated balance sheets, for the years ended December 31, 2020 and 2019, which relate to normal product warranties and a five-year obligation to provide for potential future liabilities for certain network equipment sales:

 Schedule of warranty

   Year Ended December 31 
   2020   2019 
Beginning balance  $513,000   $554,000 
Amounts charged to expense   59,000    10,000 
Actual warranty costs paid   (67,000)   (51,000)
Ending balance  $505,000   $513,000 

 

 

Accumulated other comprehensive loss:

 

The components of accumulated other comprehensive loss are as follows:

 

   Foreign
Currency
Translation
   Unrealized
(loss)/gain on
securities
   Accumulated
Other
Comprehensive
Loss
 
December 31, 2018  $(764,000)  $13,000   $(751,000)
                
Net current period change   55,000    (2,000)   53,000 
                
December 31, 2019  $(709,000)  $11,000   $(698,000)
                
Net current period change   9,000    10,000    19,000 
                
December 31, 2020  $(700,000)  $21,000   $(679,000)

 

 

F-32

 

 

Revenue recognition: The Company’s manufacturing operations (Electronics & Software segment) recognize revenue upon delivery of the Company’s connectivity infrastructure and data transmission products. To determine when revenue should be recognized, it is important to determine when the transfer of control has occurred. The Company has determined that control transfers for these products upon shipment or delivery to the customer, in accordance with the agreed upon shipping terms. As such, the timing of revenue recognition occurs at a specific point in time. Sales are made directly to customers and through distributors. Payment terms for distributors are consistent with the terms of the Company’s direct customers. The Company records a provision for sales returns, sales incentives and warranty costs at the time of the sale based on historical experience and current trends.

 

The Company has determined that the following performance obligations identified in its Services and Support segment are transferred over time: managed services and professional services (time and materials (“T&M”) and fixed price). This segment’s managed services performance obligation is a bundled solution, a series of distinct services that are substantially the same and that have the same pattern of transfer to the customer and are recognized evenly over the term of the contract. T&M professional services arrangements are measured over time with an input method based on hours expended towards satisfying this performance obligation. Fixed price professional service arrangements under a relatively longer-term service will also be measured over time with an input method based on hours expended.

 

The Company has also identified the following performance obligations within its Services and Support segment that are recognized at a point in time which include resale of third-party hardware and software, installation, arranging for another party to transfer services to the customer, and certain professional services. The resale of third-party hardware and software is recognized at a point in time, when the goods are shipped or delivered to the customer’s location, in accordance with the agreed upon shipping terms. Installation services are recognized at a point in time when the services are completed. The service the Company provides to arrange for another party to transfer services to the customer is satisfied at a point in time as the Company has transferred control upon the service first being made available to the customer by the third-party vendor, which are required to be presented on a net basis. Depending on the nature of the service, certain professional services transfer control at a point in time. The Company evaluates these circumstances on a case by case basis to determine if revenue should be recognized over time or at a point in time. See Note 2 for further discussion regarding revenue recognition.

 

Research and development: Research and development costs consist of outside testing services, equipment and supplies associated with enhancing existing products and developing new products. Research and development costs are expensed when incurred and totaled $2,808,000 in 2020 and $3,600,000 in 2019.

 

Employee Retirement Benefits: The Company has an Employee Savings Plan (401(k)) and matches a percentage of employee contributions up to six percent of compensation. Contributions to the plan in 2020 and 2019 were $371,000 and $401,000, respectively.

 

Net income (loss) per share: Basic net income (loss) per common share is based on the weighted average number of common shares outstanding during each year. Diluted net income (loss) per common share adjusts for the dilutive effect of potential common shares outstanding. The Company’s only potential common shares outstanding are stock options and shares associated with the long-term incentive compensation plans, which resulted in no dilutive effect for 2020 and a dilutive effect of 65,163 shares in 2019. Due to the net loss in 2020, there was no dilutive impact from outstanding stock options or unvested shares. The Company calculates the dilutive effect of outstanding options and unvested shares using the treasury stock method. Options totaling 697,201 would have been excluded from the calculation of diluted earnings per share for year ended December 31, 2020, because the exercise price was greater than the average market price of common stock during the year and deferred stock awards totaling 110,308 shares would not have been included because of unmet performance conditions. Options totaling 860,539 were excluded from the calculation of diluted earnings per share for year ended December 31, 2019, because the exercise price was greater than the average market price of common stock during the year and deferred stock awards totaling 178,278 shares were not included because of unmet performance conditions.

 

Share based compensation: The Company accounts for share based compensation awards on a fair value basis. The estimated grant date fair value of each stock-based award is recognized in income over the requisite service period (generally the vesting period). The estimated fair value of each option is calculated using the Black-Scholes option-pricing model.

 

F-33

 

 

Accqounting standards issued:

In June 2016, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2016-13, “Financial Instruments - Credit Losses (Topic 326), Measurement of Credit Losses on Financial Instruments.” The amendments in this update replace the incurred loss impairment methodology in current U.S. GAAP with a methodology that reflects expected credit losses. This ASU is intended to provide financial statement users with more decision-useful information about expected credit losses and is effective for annual periods and interim periods for those annual periods beginning after December 15, 2022, which for us is the first quarter ending March 31, 2023. Entities may early adopt beginning after December 15, 2018. We are currently evaluating the impact of the adoption of ASU 2016-13 on our consolidated financial statements.

 

Accounting standards adopted:

In August 2018, the FASB issued ASU 2018-13, “Fair Value Measurement.” This new standard requires changes to the disclosure requirements for fair value measurements for certain Level 3 items and specifies that some of the changes must be applied prospectively, while others should be applied retrospectively. This standard is effective for public business entities in fiscal years beginning after December 15, 2019, and for interim periods within those fiscal years, with early adoption permitted. the company adopted this standard during 2020 with an immaterial impact to our consolidated financial statements.

 

In December 2019, the FASB issued ASU 2019-12, “Simplifying the Accounting for Income Taxes”, which, as part of its Simplification Initiative to reduce the cost and complexity in accounting for income taxes, removes certain exceptions related to the approach for intra-period tax allocation, the methodology for calculating income taxes in an interim period and the recognition of deferred tax liabilities for outside basis differences. ASU 2019-12 also amends other aspects of the guidance to help simplify and promote consistent application of GAAP. The guidance is effective for interim and annual periods beginning after December 15, 2020, with early adoption permitted. The Company adopted this standard during 2020 with an immaterial impact to our consolidated financial statements.

 

 

NOTE 2 – REVENUE RECOGNITION

 

In accordance with Accounting Standards Codification (“ASC”) 606, revenue is recognized when a customer obtains control of promised goods or services. The amount of revenue recognized reflects the consideration that the Company expects to receive in exchange for these goods or services.

 

Electronics & Software

 

The Company has determined that the revenue recognition for its Electronics & Software segment occurs upon delivery of the Company’s connectivity infrastructure and data transmission products. To determine when revenue should be recognized, it is important to determine when the transfer of control has occurred. The Company has determined that control transfers for these products upon shipment or delivery to the customer, in accordance with the agreed upon shipping terms. As such, the timing of revenue recognition occurs at a specific point in time.

 

Services & Support

 

The Company has determined that the following performance obligations identified in its Services & Support segment are transferred over time: managed services and professional services (time and materials (“T&M”) and fixed price). The managed services performance obligation is a bundled solution, a series of distinct services that are substantially the same and that have the same pattern of transfer to the customer and are recognized evenly over the term of the contract. T&M professional services arrangements are measured over time with an input method based on hours expended towards satisfying this performance obligation. Fixed price professional service arrangements under a relatively longer-term service will also be measured over time with an input method based on hours expended.

 

The Company has also identified the following performance obligations within its Services & Support segment that are recognized at a point in time which include resale of third-party hardware and software, installation, arranging for another party to transfer services to the customer, and certain professional services. The resale of third-party hardware and software is recognized at a point in time, when the goods are shipped or delivered to the customer’s location, in accordance with the agreed upon shipping terms. Installation services are recognized at a point in time when the services are completed. The service the Company provides to arrange for another party to transfer services to the customer is satisfied at a point in time as the Company has transferred control upon the service first being made available to the customer by the third-party vendor, which are required to be presented on a net basis. Depending on the nature of the service, certain professional services transfer control at a point in time. The Company evaluates these circumstances on a case-by-case basis to determine if revenue should be recognized over time or at a point in time.

 

F-34

 

 

Significant Judgments

 

To determine the transaction price, the Company estimates the amount of variable consideration at the outset of the contract, depending on the facts and circumstances relative to the contract. The Company may provide credits or incentives to its customers, which are accounted for as either variable consideration or consideration payable to the customer. The Company estimates product returns based on historical return rates. The Company constrains (reduces) the estimates of variable consideration such that it is probable that a significant revenue reversal of previously recognized revenue will not occur throughout the life of the contract. When determining if variable consideration should be constrained, management considers whether there are factors outside the Company’s control that could result in a significant reversal of revenue. In making these assessments, the Company considers the likelihood and magnitude of a potential reversal of revenue. The Company will assess if any incentives it offers to its customer is a consideration payable. The Company accounts for consideration payable to a customer as a reduction of the transaction price, and therefore, of revenue. For contracts with more than one performance obligation, the consideration is allocated between separate products and services based on their stand-alone selling prices. Judgment is required to determine standalone selling prices for each distinct performance obligation. The Company generally determines standalone selling prices based on the actual prices charged to customers and has an established range of amounts that fall within stand-alone selling price for its distinct performance obligations. The Company evaluates this range quarterly.

 

Costs to Obtain or Fulfill a Contract

 

The Company evaluates “Other Assets and Deferred Costs” (ASC 340-40), for the accounting for certain costs to obtain and fulfill contracts (or, in some cases, an anticipated contract) with a customer. ASC 340-40 is applicable only to incremental contract costs, those that an entity would not have incurred if the contract had not been obtained, and requires the capitalization of these costs as well as provides guidance on the amortization and impairment considerations. The Company elects the practical expedient and expenses certain costs to obtain contracts when applicable. Within Services & Support, commissions were paid upfront on certain long-term recurring revenue agreements. Total costs to obtain a contract in the years ended December 31, 2020 and 2019 were $52,000 and $0, respectively.

 

Transaction Price Allocated to Future Performance Obligations

 

To determine the allocation of the transaction price and amounts allocated to the performance obligations, the Company first determined the standalone selling price for each distinct performance obligation in the contract in order to determine the allocations of the transaction price in proportion to the standalone selling price for each performance obligation in the contract in accordance with ASC 606-10-32-31 and 32-33. Judgment is required to determine standalone selling price for each distinct performance obligation. The Company generally determines standalone selling prices based on the actual prices charged to customers and has an established range of amounts that fall within stand-alone selling price for its distinct performance obligations. The Company evaluates this range quarterly.

 

Practical Expedients and Exemptions

 

The Company adopted various practical expedients and policy elections related to the accounting for significant finance components, sales taxes, shipping and handling, costs to obtain a contract and immaterial promised goods or services. The practical expedient to disclose the unfulfilled performance obligations was not made as they are expected to be fulfilled within one year.

 

Disaggregation of revenue

 

Revenues are recognized when control of the promised goods or services is transferred to our customers, in an amount that best reflects the consideration we expect to receive in exchange for those goods or services. In accordance with ASC 606-10-50-5, the following tables present how we disaggregate our revenues, which is different for each segment.

 

For the Electronics & Software segment, we analyze revenue by region and product group, which is as follows for the years ended December 31, 2020 and 2019:

Schedule of Disaggregation of Revenues

 

   Electronics & Software Revenue by Region 
   2020   2019 
North America  $29,721,000   $39,771,000 
International   4,775,000    7,236,000 
   $34,496,000   $47,007,000 

 

F-35

 

 

   Electronics & Software Revenue by Product Group 
   2020   2019 
Intelligent edge solutions  $12,162,000   $18,442,000 
Traditional products   22,334,000    28,565,000 
   $34,496,000   $47,007,000 

 

For the Services & Support segment, we analyze revenue by customer group and type, which is as follows for the years ended December 31, 2020 and 2019:

 

   Services & Support Revenue by Customer Group 
   2020   2019 
Education  $4,483,000   $1,926,000 
Healthcare   887,000    705,000 
Financial and other commercial clients   2,708,000    1,268,000 
CSI IT operations   699,000    842,000 
   $8,777,000   $4,741,000 

 

   Services & Support Revenue by Type 
   2020   2019 
Project & product revenue  $5,120,000   $2,242,000 
Services & support revenue   3,657,000    2,499,000 
   $8,777,000   $4,741,000 

 

Contract Balances

 

The contract assets associated with the commission costs noted above were $267,000 and $0 at December 31, 2020 and 2019, respectively. The Company does not have material contract liabilities.

 

NOTE 3 – LEASES

 

In accordance with ASC Topic 842, the Company recognizes assets and liabilities for the rights and obligations created by leases that extend more than twelve months from the date of the balance sheet. Right of use (“ROU”) assets represent our right to use an underlying asset for the lease term, while lease liabilities represent our obligation to make lease payments arising from the lease. Lease ROU assets and liabilities are recognized at the commencement date of a lease based on the present value of lease payments over the lease term. Because the rate implicit in each individual lease is not readily determinable, the Company uses its incremental borrowing rate to determine the present value of the lease payments.

 

The Company has entered into operating leases for three office locations, including one in February 2019 and one in May 2020 upon the acquisition of Ecessa. These leases have remaining lease terms of 2 to 7 years. One of the leases includes two options to extend the lease for 5 years each, and the other lease includes an option to terminate the lease in 2022. One lease includes a 3% rent adjustment on each anniversary of the lease and another includes a 2.5% annual rent adjustment as well as one free month each year. As of December 31, 2020, total ROU assets and operating lease liabilities were $413,000 and $411,000, respectively. As of December 31, 2019, total ROU assets and operating lease liabilities were $368,000 and $360,000, respectively. All operating lease expense is recognized on a straight-line basis over the lease term. In the years ended December 31, 2020 and 2019, the Company recognized $180,000 and $124,000 in lease expense, respectively. The Company also recognized $82,000 and $<