UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 40-F/A
(Amendment No. 2)
| ☒ | Registration statement pursuant to Section 12 of the Securities Exchange Act of 1934 |
or
| ☐ | Annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 |
| For the fiscal year ended ____________ | Commission File Number _________ |
SolarBank Corporation
(Exact name of Registrant as specified in its charter)
| Ontario, Canada | 221114 | N/A | ||
(Province or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) |
505 Consumers Rd., Suite 803
Toronto, Ontario, M2J 4Z2
Canada
(Address and telephone number of Registrant’s principal executive offices)
Corporate Creations Network Inc.
1629 K Street, NW, #300 Washington, DC 20006
Telephone (561) 694-8107
(Name, address (including zip code) and telephone number (including area code) of agent for service in the United States)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of exchange on which registered | ||
| Common Shares | SUUN | The Nasdaq Stock Market LLC |
Securities registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
For annual reports, indicate by check mark the information filed with this Form:
| ☐ Annual information form | ☐ Audited annual financial statements |
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: N/A
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. ☐ Yes ☒ No
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). ☐ Yes ☐ No
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 12b-2 of the Exchange Act.
Emerging growth company ☒
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ☐
| † | The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012. |
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
EXPLANATORY NOTE
SolarBank Corporation (the “Company”, the “Registrant”) is a Canadian issuer eligible to file its registration statement pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on Form 40-F pursuant to the multi-jurisdictional disclosure system of the Exchange Act. The Company is a “foreign private issuer” as defined in Rule 3b-4 under the Exchange Act. Equity securities of the Company are accordingly exempt from Sections 14(a), 14(b), 14(c), 14(f) and 16 of the Exchange Act pursuant to Rule 3a12-3. The Registrant filed a Registration Statement on Form 40-F on March 11, 2024 and an Amendment No. 1 to the Registration Statement on March 21, 2024 (SEC File No. 001-41976) (the “Registration Statement”).
The Registrant is filing this Amendment No. 2 to the Registration Statement to include additional exhibits, each of which is being incorporated by reference in the Registration Statement.
FORWARD LOOKING STATEMENTS
The Exhibits incorporated by reference into this Registration Statement of the Registrant contain forward-looking statements that reflect our management’s expectations with respect to future events, our financial performance and business prospects. All statements other than statements of historical fact are forward-looking statements. The use of the words such as “plan”, “expect”, “project”, “intend”, “believe”, “anticipate”, “estimate”, “may”, “will”, “potential”, “proposed” and other similar words (including negative and grammatical variations), or statements that certain events or conditions “may” or “will” occur, and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. These statements are not guarantees of future performance and involve known and unknown risks, uncertainties and other factors that may cause actual results or events to differ materially from those anticipated in the forward-looking statements. By their nature, forward-looking statements involve numerous assumptions, known and unknown risks and uncertainties, both general and specific, that contribute to the possibility that the predictions, forecasts, projections and other forward-looking statements will not occur, including, without limitation, those described in the Company’s Revised Annual Information Form for the year ended June 30, 2023 filed as Exhibit 99.57 to this Registration Statement. No assurance can be given that these expectations will prove to be correct and such forward-looking statements in the Exhibits incorporated by reference into this Registration Statement should not be unduly relied upon. The Registrant’s forward-looking statements contained in the Exhibits incorporated by reference into this Registration Statement are made as of the respective dates set forth in such Exhibits. Such forward-looking statements are based on the beliefs, expectations and opinions of management on the date the statements are made. In preparing this Registration Statement, the Registrant has not updated such forward-looking statements to reflect any change in circumstances or in management’s beliefs, expectations or opinions that may have occurred prior to the date hereof, except as required by applicable law. Nor does the Registrant assume any obligation to update such forward-looking statements in the future, except as required by applicable law. For the reasons set forth above, investors should not place undue reliance on forward-looking statements.
DIFFERENCES IN UNITED STATES AND CANADIAN REPORTING PRACTICES
The Registrant is permitted, under a multijurisdictional disclosure system adopted by the United States Securities and Exchange Commission (the “Commission”), to prepare this report in accordance with Canadian disclosure requirements, which are different from those of the United States. The Registrant prepares its financial statements, which are filed with this report on Form 40-F in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board, and the audit is subject to Canadian auditing and auditor independence standards. The foregoing differ in certain important respects from United States generally accepted accounting principles (“US GAAP”) and from practices prescribed by the SEC. Therefore, the Registrant’s financial statements filed with this Registration Statement may not be comparable to financial statements prepared in accordance with U.S. GAAP.
PRINCIPAL DOCUMENTS
In accordance with General Instruction B.(1) of Form 40-F, the Registrant hereby incorporates by reference Exhibits 99.1 through 99.126, inclusive, as set forth in the Exhibit Index attached hereto.
In accordance with General Instruction D.(9) of Form 40-F, the Registrant has filed the written consent of the experts named in the foregoing Exhibits as Exhibits 99.120, 99.121 and 99.122, as set forth in the Exhibit Index attached hereto.
TAX MATTERS
Purchasing, holding, or disposing of securities of the Registrant may have tax consequences under the laws of the United States and Canada that are not described in this Registration Statement.
DESCRIPTION OF COMMON SHARES
The required disclosure is included under the heading “Description of Capital Structure” in the Registrant’s Revised Annual Information Form for the fiscal year ended June 30, 2023, attached hereto as Exhibit 99.57.
OFF-BALANCE SHEET ARRANGEMENTS
The Registrant has no off-balance sheet arrangements. (as that term is defined in paragraph 11(ii) of General Instruction B to Form 40-F) that have or are reasonably likely to have a current or future effect on its financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to investors.
CURRENCY
Unless otherwise indicated, all dollar amounts in this Registration Statement are in Canadian dollars. The exchange rate of Canadian dollars into United States dollars, on February 26, 2024, based upon the daily exchange rate as quoted by the Bank of Canada was U.S.$1.00 = Cdn.$1.3515.
CONTRACTUAL OBLIGATIONS
The following table summarizes the contractual obligations of the Registrant as of December 31, 2023 (expressed in $000s):
| Contractual Obligations | Total | Less than 1 year | 1-3 years | 3-5 years | More than 5 years | |||||||||||||||
| Long Term Debt Obligations | $ | 3,157 | $ | 346 | $ | 926 | $ | 1,848 | $ | 37 | ||||||||||
| Capital (Finance) Lease Obligations | 1,628 | 211 | 513 | 311 | 593 | |||||||||||||||
| Operating Lease Obligations | — | — | — | — | — | |||||||||||||||
| Purchase Obligations | — | — | — | — | — | |||||||||||||||
| Other Long-Term Liabilities | 408 | 80 | 171 | 157 | — | |||||||||||||||
| Total | $ | 5,193 | $ | 637 | $ | 1,610 | $ | 2,316 | $ | 630 | ||||||||||
NASDAQ CORPORATE GOVERNANCE
A foreign private issuer that follows home country practices in lieu of certain provisions of the listing rules of the Nasdaq Stock Market LLC (the “Nasdaq Stock Market Rules”) must disclose the ways in which its corporate governance practices differ from those followed by domestic companies. As required by Nasdaq Rule 5615(a)(3), the Registrant will disclose on its website, https://solarbankcorp.com/investors/, as of the listing date, each requirement of the Nasdaq Stock Market Rules that it does not follow and describe the home country practice followed in lieu of such requirements.
UNDERTAKING
The Registrant undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to the securities registered pursuant to Form 40-F or transactions in said securities.
CONSENT TO SERVICE OF PROCESS
The Registrant has concurrently filed a Form F-X in connection with the class of securities to which this Registration Statement relates.
Any change to the name or address of the Registrant’s agent for service shall be communicated promptly to the Commission by amendment to the Form F-X referencing the file number of the Registrant.
SIGNATURES
Pursuant to the requirements of the Exchange Act, the Registrant certifies that it meets all of the requirements for filing on Form 40-F and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized.
| SOLARBANK CORPORATION | ||
| By: | /s/ Richard Lu | |
| Name: | Dr. Richard Lu | |
| Title: | Director, Chief Executive Officer and President | |
Date: March 27, 2024
EXHIBIT INDEX
The following documents are being filed with the Commission as Exhibits to this Registration Statement:
| Exhibit | Description | |
| 99. 1* | ||
| 99.2* | ||
| 99.3* | SolarBank Corporation Share Compensation Plan dated November 4, 2022 | |
| 99.4* | SolarBank Corporation Code of Business Conduct and Ethics dated November 4, 2022 | |
| 99.5* | ||
| 99.6* | Appendix C to National Instrument 41-101 dated February 10, 2023 | |
| 99.7* | ||
| 99.8* | Prospectus for Initial Public Offering of SolarBank Corporation dated February 10, 2023 | |
| 99.9* | ||
| 99.10* | ||
| 99.11* | Undertaking by SolarBank Corporation dated February 10, 2023 | |
| 99.12* | ||
| 99.13* | Receipt of Long Form Prospectus by Ontario Securities Commission dated February 13, 2023 | |
| 99.14* | ||
| 99.15* | ||
| 99.16* | ||
| 99.17* | ||
| 99.18* |
| 99.19* | ||
| 99.20* | Material Change Report of SolarBank Corporation dated March 1 and 2, 2023 | |
| 99.21* | Notice Declaring Intention to be Qualified under National Instrument 44-101 dated March 3, 2023 | |
| 99.22* | ||
| 99.23* | ||
| 99.24* | ||
| 99.25* | ||
| 99.26* | ||
| 99.27* | ||
| 99.28* | ||
| 99.29* | ||
| 99.30* | ||
| 99.31* | ||
| 99.32* | Receipt of Base Shelf Prospectus by Ontario Securities Commission dated May 3, 2023 | |
| 99.33* | ||
| 99.34* | ||
| 99.35* | Material Change Report of SolarBank Corporation dated May 8, 2023 | |
| 99.36* | ||
| 99.37* | ||
| 99.38* | ||
| 99.39* | ||
| 99.40* |
| 99.41* | ||
| 99.42* | ||
| 99.43* | ||
| 99.44* | ||
| 99.45* | ||
| 99.46* | ||
| 99.47* | ||
| 99.48* | ||
| 99.49* | ||
| 99.50* | ||
| 99.51* | ||
| 99.52* | ||
| 99.53* | ||
| 99.54* | Material Change Report of SolarBank Corporation dated June 30, 2023 | |
| 99.55* | ||
| 99.56* | ||
| 99.57* | Revised Annual Information Form of SolarBank Corporation for the year ended June 30, 2023 | |
| 99.58* | Material Change Report of SolarBank Corporation dated July 6, 2023 | |
| 99.59* | ||
| 99.60* | ||
| 99.61* | ||
| 99.62* | ||
| 99.63* |
| 99.64* | ||
| 99.65* | ||
| 99.66* | ||
| 99.67* | ||
| 99.68* | ||
| 99.69* | ||
| 99.70* | Material Change Report of SolarBank Corporation dated September 28, 2023 | |
| 99.71* | ||
| 99.72* | ||
| 99.73* | ||
| 99.74* | ||
| 99.75* | ||
| 99.76* | ||
| 99.77* | ||
| 99.78* | Letter from Endeavor Trust Corporation, as agent for SolarBank Corporation, dated October 13, 2023 | |
| 99.79* | Material Change Report of SolarBank Corporation dated October 13, 2023 | |
| 99.80* | ||
| 99.81* |
* Previously Filed
