Delaware | | | 5500 | | | 82-4183498 |
(State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification Number) |
Large accelerated filer | | | ☐ | | | Accelerated filer | | | ☒ |
| | | | | | ||||
Non-accelerated filer | | | ☐ | | | Smaller reporting company | | | ☒ |
| | | | | | ||||
| | | | Emerging growth company | | | ☐ |
| | Per Share | | | Total(1) | |
Subscription Price | | | $[•] | | | $[•] |
Proceeds to us, before expenses | | | $[•] | | | $[•] |
(1) | Assumes the Rights Offering is fully subscribed. |
• | future market conditions and industry trends, including anticipated national new recreational vehicle (“RV”) wholesale shipments; |
• | changes in U.S. or global economic conditions; |
• | changes in expected operating results, such as store performance, selling, general and administrative expenses (“SG&A”) as a percentage of gross profit and all projections; |
• | our ability to procure and manage inventory levels to reflect consumer demand; |
• | our ability to find accretive acquisitions; |
• | changes in the planned integration, success and growth of acquired dealerships and greenfield locations; |
• | changes in our expected liquidity from our cash, availability under our credit facility and unfinanced real estate; |
• | compliance with financial and restrictive covenants under our credit facility and other debt agreements; |
• | changes in our anticipated levels of capital expenditures in the future; |
• | the repurchase of shares under our share repurchase program; |
• | our business strategies for customer retention, growth, market position, financial results and risk management; and |
• | other factors beyond our control, including those listed under “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2022 or in our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2023 and June 30, 2023, each as incorporated herein by reference, and in other filings we may make from time to time with the SEC. |
Q: | What is the Rights Offering? |
Q: | Why are we conducting the Rights Offering? |
Q: | What is a Right? |
Q: | How was the subscription price of $[•] per share of Common Stock determined? |
Q: | What is the Basic Subscription Right? |
Q: | What is the Over-Subscription Right? |
Q: | What are the limitations of the Over-Subscription Right? |
Q: | Will fractional shares be issued upon exercise of the Rights? |
Q: | Has our Board or the Company made a recommendation to our stockholders whether to exercise or let lapse their Rights in the Rights Offering? |
Q: | Will the directors and executive officers participate in this Rights Offering? |
Q: | How do I exercise my Rights? |
• | deliver payment to the Subscription Agent using the method outlined in this prospectus; and |
• | deliver a properly completed rights certificate (the “Rights Certificate”) to the Subscription Agent before 5:00 p.m., New York City time, on [•], 2023, unless the expiration date is extended. |
Q: | What should I do if I want to participate in the Rights Offering, but my shares are held in the name of my broker, dealer, or other nominee? |
Q: | Will I be charged a sales commission or a fee if I exercise my Rights? |
Q: | Are there any conditions to my right to exercise my Rights? |
Q: | May I participate in this Rights Offering if I sell my Common Stock after the Record Date? |
Q: | How soon must I act to exercise my Rights? |
Q: | When will I receive my Rights Certificate? |
Q: | May I sell, transfer or assign my Rights? |
Q: | Will I be able to trade my Rights on the Nasdaq? |
Q: | Am I required to subscribe in the Rights Offering? |
Q: | Am I required to exercise any or all of the Rights I receive in the Rights Offering? |
Q: | Is the Company requiring a minimum subscription to complete the Rights Offering? |
Q: | Can the Board cancel, terminate, amend or extend the Rights Offering? |
Q: | Will my percentage ownership interest in the Company be diluted by the Rights Offering? |
Q: | If I exercise Rights in the Rights Offering, may I cancel or change my decision? |
Q: | How much money will the Company receive from the Rights Offering? |
Q: | Are there risks in exercising my Rights? |
Q: | How many shares of Common Stock will be outstanding immediately after the Rights Offering? |
Q. | Is the Rights Offering similar to a forward stock split? |
Q. | Is the Rights Offering similar to a reverse stock split? |
Q: | Will this Rights Offering result in the Company “going private” for purposes of Rule 13e-3 of the Exchange Act? |
Q: | If the Rights Offering is not completed, will my subscription payment be refunded to me? |
Q: | What should I do if I want to participate in the Rights Offering, but I am a stockholder with a foreign address? |
Q: | What are the U.S. federal income tax considerations applicable to holders of receiving or exercising Rights? |
Q: | To whom should I send my forms and payment? |
By Mail: | | | By Overnight Delivery: |
Broadridge Corporate Issuer Solutions, LLC Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 | | | Broadridge Corporate Issuer Solutions, LLC Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
Q: | What should I do if I have other questions? |
• | an actual basis; and |
• | a pro forma basis, to give effect to the issuance and sale of [•] shares of Common Stock in this Rights Offering and our receipt of the proceeds from this Rights Offering (based on the subscription price), after deducting estimated offering expenses. |
| | As of June 30, 2023 (Unaudited) | ||||
| | Actual | | | Pro Forma | |
| | (Dollars in thousands) | ||||
Cash | | | $24,173 | | | $ |
Total current assets | | | 454,636 | | | |
Total liabilities | | | 530,773 | | | |
Series A convertible preferred stock; 600,000 shares, designated, issued, and outstanding; liquidation preference of $60,000 | | | 54,983 | | | |
Stockholders’ Equity | | | | | ||
Preferred Stock, $0.0001 par value; 5,000,000 shares authorized | | | — | | | |
Common Stock, $0.0001 par value; 100,000,000 shares authorized; 17,328,483 shares issued and 13,916,261 shares outstanding | | | — | | | |
Additional paid-in capital | | | 162,211 | | | |
Treasury Stock, at cost, 3,412,222 shares | | | (57,128) | | | |
Retained earnings | | | 166,487 | | | |
Total stockholders’ equity | | | $271,570 | | | $ |
Total Capitalization | | | $768,717 | | |
• | 6,081,661 shares of Common Stock issuable upon the conversion of 600,000 shares of Series A Preferred Stock, taking into account the accrued dividends which we may elect to pay in cash or shares of Common Stock; |
• | 300,357 shares of Common Stock issuable upon exercise of the Warrants. See “Prospectus Summary—Recent Developments-Anti-Dilution Waivers” for further information regarding an applicable anti-dilution provision; and |
• | 365,002 shares of Common Stock issuable upon exercise of outstanding options as of June 30, 2023, at a weighted average exercise price of $10.82 per share. |
Subscription price | | | | | $[•] | |
Net tangible book value per share as of June 30, 2023 | | | $11.46 | | | |
Pro forma net tangible book value per share as of June 30, 2023 | | | [•] | | | |
Increase in pro forma net tangible book value per share | | | [•] | | | |
Dilution in net tangible book value per share to stockholders participating in this offering | | | | | [•] |
• | 6,081,661 shares of Common Stock issuable upon the conversion of 600,000 shares of Series A Preferred Stock, taking into account the accrued dividends which we may elect to pay in cash or shares of Common Stock; |
• | 300,357 shares of Common Stock issuable upon exercise of the Warrants. See “Prospectus Summary—Recent Developments-Anti-Dilution Waivers” for further information regarding an applicable anti-dilution provision; and |
• | 365,002 shares of Common Stock issuable upon exercise of outstanding options as of June 30, 2023, at a weighted average exercise price of $10.82 per share. |
• | Your properly completed and executed Rights Certificate with any required signature guarantees or other supplemental documentation; and |
• | Your full subscription price payment for each share of Common Stock subscribed for under your Rights. |
• | the Subscription Agent receives a certified bank or cashier’s check drawn upon a U.S. bank payable to the Subscription Agent; or |
• | the Subscription Agent receives a wire transfer of immediately available funds. |
By Mail: Broadridge Corporate Issuer Solutions, LLC Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 | | | By Overnight Delivery: Broadridge Corporate Issuer Solutions, LLC Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
• | your Rights Certificate provides that the shares of Common Stock are to be delivered to you as record holder of those Rights; or |
• | you are an eligible institution. |
• | the Subscription Agent receives a certified bank or cashier’s check drawn upon a U.S. bank payable to the Subscription Agent; or |
• | the Subscription Agent receives a wire transfer of immediately available funds. |
• | deliver to the Subscription Agent on or prior to the expiration date your subscription price payment in full for each share you subscribed for under your subscription privileges in the manner set forth above in “— Method of Payment”; |
• | deliver to the Subscription Agent on or prior to the expiration date the form titled “Notice of Guaranteed Delivery,” substantially in the form provided with the “Instructions as to Use of Lazydays Holdings, Inc.’s Rights Certificates” distributed with your Rights Certificates; and |
• | deliver the properly completed Rights Certificate evidencing your Rights being exercised and the related nominee holder certification, if applicable, with any required signatures guaranteed, to the Subscription Agent within two business days following the date of your Notice of Guaranteed Delivery. |
• | your name; |
• | the number of Rights represented by your Rights Certificates, the number of shares of our Common Stock you are subscribing for under your Basic Subscription Right and the number of shares of our Common Stock you are subscribing for under your Over-Subscription Right, if any; and |
• | your guarantee that you will deliver to the Subscription Agent any Rights Certificates evidencing the Rights you are exercising within two business days following the date the Subscription Agent receives your Notice of Guaranteed Delivery. |
• | Subject to applicable securities laws and regulations, any purchaser that continues to hold Series A Preferred Stock convertible into 5% or more of the then issued and outstanding shares of our Common Stock shall also have a preemptive right to purchase its pro rata share of all equity securities that we may, from time to time, propose to sell and issue after the consummation of the Mergers (subject to certain exceptions), including this Rights Offering. |
• | If we seek to consummate any debt financings (other than (i) non-distressed floor plan financings on customary terms and conditions and with an interest rate of not greater than 5% per annum, (ii) the replacement or refinancing of existing indebtedness where the replaced or refinanced indebtedness does not exceed the existing amount of indebtedness and are not on terms materially worse than the indebtedness being replaced or refinanced, and (iii) advances or other extensions of credit under a revolving credit facility or floor plan credit facility) after the consummation of the Mergers, Coliseum Capital Management, LLC shall be entitled to a right of first refusal to provide the funding necessary for such debt financings provided that it still holds an aggregate of at least $10 million of the Series A Preferred Stock. Coliseum Capital Management, LLC will have a period of 15 business days to notify us of its intention to exercise its right. |
• | U.S. expatriates and former citizens or long-term residents of the United States; |
• | persons holding the Rights, shares of our Common Stock, Series A Preferred Stock or Warrants as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other integrated investment; |
• | banks, insurance companies, and other financial institutions; |
• | brokers, dealers or traders in securities or currencies or traders that elect to mark-to-market their securities; |
• | “controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax; |
• | partnerships or other entities or arrangements treated as partnerships or other pass-through entities for U.S. federal income tax purposes (and investors therein); |
• | real estate investment trusts, regulated investment companies, grantor trusts, tax-exempt organizations or governmental organizations; |
• | persons deemed to sell the Rights, shares of our Common Stock, Series A Preferred Stock or Warrants under the constructive sale provisions of the Code; |
• | persons subject to special tax accounting rules as a result of any item of gross income being taken into account in an applicable financial statement (as defined in the Code); |
• | persons for whom our stock constitutes “qualified small business stock” within the meaning of Section 1202 of the Code; |
• | persons who received, hold or will receive shares of our Common Stock, Series A Preferred Stock, Warrants or the Rights pursuant to the exercise of any employee stock option or otherwise as compensation and persons who hold restricted Common Stock; |
• | tax-qualified retirement plans; and |
• | U.S. Holders (as defined below) that have a functional currency other than the U.S. dollar. |
• | an individual who is a citizen or resident of the United States; |
• | a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized under the laws of the United States, any state thereof, or the District of Columbia; |
• | an estate, the income of which is subject to U.S. federal income tax regardless of its source; or |
• | a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more United States persons (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect to be treated as a United States person (within the meaning of Section 7701(a)(30) of the Code) for U.S. federal income tax purposes. |
• | fails to furnish the holder’s taxpayer identification number, which for an individual is ordinarily his or her social security number; |
• | furnishes an incorrect taxpayer identification number; |
• | is notified by the IRS that the holder previously failed to properly report payments of interest or dividends; or |
• | 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. |
• | the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment in the United States to which such gain is attributable); |
• | the Non-U.S. Holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the disposition and certain other requirements are met; or |
• | our Common Stock constitutes a U.S. real property interest (“USRPI”) by reason of our status as a U.S. real property holding corporation (“USRPHC”) for U.S. federal income tax purposes. |
By Mail: Broadridge Corporate Issuer Solutions, LLC Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 | | | By Overnight Delivery: Broadridge Corporate Issuer Solutions, LLC. Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
Name of Beneficial Owners | | | Amount and Nature of Beneficial Ownership (Common Stock) | | | Percent of Class(1) | | | Amount and Nature of Beneficial Ownership (Series A Preferred Stock)(2) | | | Percent of Class(3) | | | Percent of Total Voting Power(4) |
Directors and Named Executive Officers | | | | | | | | | | | |||||
John North | | | 35,103 | | | * | | | — | | | — | | | — |
Kelly Porter | | | 18,588 | | | * | | | — | | | — | | | — |
Robert DeVincenzi | | | 80,708(5) | | | * | | | — | | | — | | | — |
Jerry Comstock | | | 51,173(6) | | | * | | | — | | | — | | | * |
James J. Fredlake | | | 61,335(7) | | | * | | | — | | | — | | | * |
Jordan Gnat | | | 41,955(8) | | | * | | | — | | | — | | | * |
Erika Serow | | | 36,955(9) | | | * | | | — | | | — | | | * |
Christopher S. Shackelton | | | 11,256,916(10) | | | 59.1% | | | 500,000(11) | | | 83.3% | | | 56.1% |
All directors and executive officers as a group (10 persons) | | | 11,582,733(12) | | | 60.4% | | | 500,000 | | | 83.3% | | | 57.4% |
| | | | | | | | | | ||||||
5% or Greater Securityholders | | | | | | | | | | | |||||
Coliseum Capital Management, LLC. | | | 11,256,916(10) | | | 59.1% | | | 500,000(11) | | | 83.3% | | | 56.1% |
Park West Asset Management LLC | | | 1,397,881(13) | | | 9.99% | | | 100,000(13) | | | 16.7% | | | 7.0% |
Divisadero Street Capital Management, LP | | | 722,357(14) | | | 5.16% | | | — | | | — | | | 3.6% |
Cannell Capital, LLC | | | 1,092,399(15) | | | 7.8% | | | — | | | — | | | 5.5% |
* | Less than 1 percent |
(1) | For purposes of this column, the number of shares of the class outstanding reflects the sum of: (i) 13,992,827 shares of Common Stock that were outstanding as of August 28, 2023; and (ii) the number of shares of Common Stock, if any, which the relevant person could acquire on exercise of options, warrants, pre-funded warrants or conversion of the preferred stock within 60 days of August 28, 2023. |
(2) | This column includes the number of shares of preferred stock. The number of shares of Common Stock that could be obtained upon the conversion of preferred stock at the current conversion rate is included in the column entitled “Amount and Nature of Beneficial Ownership (Common Stock).” |
(3) | Certain purchasers of the preferred stock are entitled to vote upon all matters upon which holders of Common Stock have the right to vote and are entitled to the number of votes equal to the number of full shares of Common Stock into which such shares of preferred stock could be converted at the then applicable conversion rate. |
(4) | The Percent of Total Voting Power is calculated by dividing: (A) the aggregate number of shares of Common Stock beneficially owned under Rule 13d-3 of the Exchange Act by the relevant person, including all shares of Common Stock issuable upon conversion of preferred stock, subject to the beneficial ownership limitations contained therein by: (B) the sum of (x) the number of shares of Common Stock issued and outstanding, (y) the number of shares of Common Stock that could be acquired upon the conversion of all shares of preferred stock issued and outstanding, subject to the beneficial ownership limitations contained therein and (z) the number of shares of Common Stock, if any, which the relevant person could acquire on exercise of options or warrants within 60 days of August 28, 2023. |
(5) | Includes 54,631 shares of common Stock issuable upon the exercise of options as follows: 25,032 shares of Common Stock at an exercise price of $30.00 per share and 29,599 shares at an exercise price of $14.55 per share that are or will become exercisable within 60 days of August 28, 2023. |
(6) | Includes 23,436 shares of Common Stock issuable upon the exercise of options as follows: 20,770 shares of Common Stock at an exercise price of $7.91 per share and 2,666 shares at an exercise price of $23.11 per share that are or will become exercisable within 60 days of August 28, 2023. |
(7) | Includes 23,436 shares of Common Stock issuable upon the exercise of options as follows: 20,770 shares of Common Stock at an exercise price of $7.91 per share and 2,666 shares at an exercise price of $23.11 per share that are or will become exercisable within 60 days of August 28, 2023. |
(8) | Includes 33,666 shares of Common Stock issuable upon the exercise of options as follows: 31,000 shares of Common Stock at an exercise price of $7.91 per share and 2,666 shares at an exercise price of $23.11 per share that are or will become exercisable within 60 days of August 28, 2023. |
(9) | Includes 33,666 shares of Common Stock issuable upon the exercise of options as follows: 31,000 shares of Common Stock at an exercise price of $7.91 per share and 2,666 shares at an exercise price of $23.11 per share that are or will become exercisable within 60 days of August 28, 2023. |
(10) | Consists of: (i) 4,968,944 shares of Common Stock that could be obtained upon the conversion of 500,000 shares of preferred stock at the current conversion rate; (ii) the equivalent of 64,256 shares of Common Stock that could be voted as a result of accrued and unpaid Preferred Dividends (as defined in the Certificate of Designations of the preferred stock) at the current conversion rate; (iii) 6,190,050 shares of Common Stock; and (iv) 33,666 shares of Common Stock issuable upon the exercise of options held by Coliseum Capital Partners, L.P. (“CCP”) and granted for Mr. Shackelton’s services on the Board that are or will become exercisable within 60 days of August 28, 2023 as follows: 31,000 shares of Common Stock at an exercise price of $7.91 per share and 2,666 shares of Common Stock at an exercise price of $23.11 per share. |
(11) | Consists of 500,000 shares of preferred stock, of which 365,511 shares of preferred stock are held by CCP and 134,489 shares of preferred stock are held by an investment advisory client of CCM. |
(12) | Includes: (i) 4,968,944 shares of Common Stock that could be obtained upon the conversion of 500,000 shares of preferred stock at the current conversion rate and 64,256 shares of Common Stock that could be voted as a result of accrued and unpaid Preferred Dividends; and (ii) 158,695 shares of Common Stock issuable upon the exercise of options at various exercise prices that are or will become exercisable within 60 days of August 28, 2023. |
(13) | Consists of: (i) Park West Asset Management LLC, a Delaware limited liability company (“PWAM”), (ii) Park West Investors Master Fund, Limited, a Cayman Islands exempted company (“PWIMF”) and (iii) Peter S. Park (“Mr. Park” and, collectively with PWAM and PWIMF, “Park West”). PWAM is the investment manager to PWIMF and Park West Partners International, Limited (“PWPI” and, collectively with PWIMF, the “PW Funds”). Mr. Park is the controlling manager of PWAM. |
(14) | Based on the Schedule 13G filed on May 19, 2023, Divisadero Street Capital Management, LP (“Divisadero”)is the investment adviser to private investment funds, including Divisadero Street Partners, L.P. (“Divisadero Partners”) (collectively, the “Funds”), and Divisadero Street Partners GP, LLC is the general partner of the Funds. Mr. William Zolezzi is the control person of Divisadero and the General Partner. Divisadero, the Funds, the General Partner and Mr. Zolezzi share voting and dispositive power over the securities. The address for Divisadero, the Funds, the General Partner and Mr. Zolezzi is 3350 Virginia Street, 2nd Floor, Miami, Florida 33133 |
(15) | The address for Cannell Capital, LLC is 245 Meriwether Circle, Alta, Wyoming 83414. |
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 1, 2023; |
• | our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2023 and June 30, 2023, filed with the SEC on April 28, 2023 and July 28, 2023, respectively; |
• | our Current Reports on Form 8-K, filed with the SEC on January 27, 2023, February 23, 2023 (excluding information under Item 2.02), June 15, 2023 and September 12, 2023; |
• | our definitive proxy statement on Schedule 14A filed with the SEC on May 1, 2023 (solely to the extent incorporated by reference into Part III of our Annual Report on Form 10-K for the fiscal year ended December 31, 2022); and |
• | the description of our Common Stock contained in Exhibit 4.7 to our Annual Report on Form 10-K for the year ended December 31, 2020 filed with the SEC on March 19, 2021. |
Item 13. | Other expenses of issuance and distribution. |
Item | | | Amount |
SEC registration fee | | | $1,102.00 |
Subscription agent fees and expenses | | | * |
Information agent fees and expenses | | | * |
Printing and postage expenses | | | * |
Legal fees and expenses | | | * |
Accounting fees and expenses | | | * |
Miscellaneous fees and expenses | | | * |
Total | | | $* |
* | to be completed by an amendment. |
Item 14. | Indemnification of directors and officers. |
Item 15. | Recent sales of unregistered securities. |
• | On December 22, 2020, an institutional investor exercised a warrant issued in the 2018 PIPE transaction with respect to 28,571 shares of our Common Stock pursuant to the cashless exercise provisions of the warrant, resulting in the issuance of 5,755 shares of our Common Stock. S |
• | On February 16, 2021, an institutional investor exercised a warrant issued in the 2018 PIPE transaction with respect to 11,429 shares of our Common Stock, resulting in the issuance of 11,429 shares of our Common Stock. |
• | On May 6, 2021, an institutional investor exercised a warrant issued in the 2018 PIPE transaction with respect to 92,000 shares of our Common Stock pursuant to the cashless exercise provisions of the warrant, resulting in the issuance of 47,866 shares of our Common Stock. |
• | On November 11, 2021, an institutional investor exercised a warrant issued in the 2018 PIPE transaction with respect to 85,714 shares of our common stock pursuant to the cashless exercise provisions of the warrant, resulting in the issuance of 39,108 shares of our common stock. |
• | On January 5, 2022, an institutional investor exercised a warrant issued in the 2018 PIPE transaction with respect to 57,143 shares of our Common Stock pursuant to the cashless exercise provisions of the warrant, resulting in the issuance of 24,276 shares of our Common Stock. |
• | On December 6, 2022, an institutional investor exercised a warrant issued in the 2018 PIPE transaction with respect to 133,653 shares of our Common Stock, resulting in the issuance of 133,653 shares of our Common Stock. |
• | On December 6, 2022, an institutional investor exercised a warrant issued in the 2018 PIPE transaction with respect to 363,241 shares of our Common Stock resulting in the issuance of 363,241 shares of our Common Stock. |
• | On February 27, 2023, an institutional investor exercised a warrant issued in the 2018 PIPE transaction with respect to 7,500 shares of our Common Stock pursuant to the cashless exercise provisions of the warrant, resulting in the issuance of 215 shares of our Common Stock. |
• | On March 14, 2023, an institutional investor exercised a warrant issued in the 2018 PIPE transaction with respect to 670,807 shares of our Common Stock, resulting in the issuance of 670,807 shares of our Common Stock. |
• | On March 17, 2021, two institutional investors of the Company exercised warrants issued in the 2018 PIPE transaction with respect to an aggregate of 1,005,308 shares of Common Stock for cash, resulting in the issuance of 1,005,308 shares of Common Stock and gross proceeds to the Company of approximately $11.3 million, pursuant to agreements executed with the Company on such date. Such issuances were exempt from registration under the Securities Act pursuant to Section 4(a)(2) of such act, and Rule 506(b) thereunder, as issuances made in a private placement to accredited investors. |
Item 16. | Exhibits and financial statement schedules. |
(a) | Exhibits. |
Exhibit Number | | | Description |
| | Agreement and Plan of Merger, dated as of October 27, 2017, by and among Andina Acquisition Corp. II, Andina II Holdco Corp., Andina II Merger Sub Inc., Lazy Days’ R.V. Center, Inc. and A. Lorne Weil (included as Annex A to the Proxy Statement/Prospectus/Information Statement filed on February 14, 2018 and incorporated herein by reference). | |
| | Asset Purchase Agreement among BYRV, Inc., BYRV Washington, Inc., Bruce Young, Mark Bretz, The Bruce A. Young Revocable Trust, The Bruce A. Young 2021 Gift Trust and Lazydays RV of Oregon, LLC, effective as of July 9, 2021 (filed as Exhibit 2.1 to the Quarterly Report on Form 10-Q for the quarter ended September 30, 2021 and incorporated herein by reference). | |
| | Amended and Restated Certificate of Incorporation of Lazydays Holdings, Inc., including the Certificate of Designations of Series A Convertible Preferred Stock (filed as Exhibit 3.1 to the Current Report on Form 8-K filed on June 3, 2022 and incorporated herein by reference). | |
| | Amended and Restated Bylaws of Lazydays Holdings, Inc., effective January 25, 2023 (filed as Exhibit 3.1 to the Current Report on Form 8-K filed on January 27, 2023 and incorporated herein by reference). | |
| | Certificate of Designations of Series A Preferred Stock of Lazydays Holdings, Inc. (included as Annex D to the Proxy Statement/Prospectus/Information Statement filed on February 14, 2018 and incorporated herein by reference). | |
| | Specimen Common Stock Certificate of Lazydays Holdings, Inc. (filed as Exhibit 4.5 to the Registration Statement on Form S-4 (SEC File No. 333-221723) filed on January 16, 2018 and incorporated herein by reference). | |
| | Form of Unit Purchase Option (filed as Exhibit 4.5 of Andina’s Form S-1/A filed on November 6, 2015 and incorporated herein by reference). | |
| | Warrant Agreement between Continental Stock Transfer & Trust Company and Andina (filed as Exhibit 4.7 of Andina’s Form S-1/A filed on November 6, 2015 and incorporated herein by reference). | |
| | Form of Specimen Series A Preferred Stock Certificate (filed as Exhibit 4.4 to the Registration Statement on Form S-1 (SEC File No. 333-224063) filed on March 30, 2018 and incorporated herein by reference). | |
| | Form of Common Stock purchase warrant (filed as Exhibit 4.5 to the Registration Statement on Form S-1 (SEC File No. 333-224063) filed on March 30, 2018 and incorporated herein by reference). | |
| | Form of Pre-Funded Common Stock Purchase warrant (filed as Exhibit 4.6 to the Registration Statement on Form S-1 (SEC File No. 333-224063) filed on March 30, 2018 and incorporated herein by reference). | |
| | Description of Registrant’s Securities (filed as Exhibit 4.7 to the Annual Report on Form 10-K for the year ended December 31, 2020 and incorporated herein by reference). | |
| | Form of Rights Certificate. | |
| | Form of Subscription and Information Agent Agreement by and between Lazydays Holdings, Inc. and Broadridge Corporate Issuer Solutions, LLC. | |
| | Form of Opinion of Paul Hastings LLP. | |
| | Registration Rights Agreement between Andina and certain security holders of Andina (incorporated by reference to Exhibit 10.1 of Andina’s Current Report on Form 8-K filed on December 1, 2015 and incorporated herein by reference). | |
| | 2018 Long-Term Incentive Plan (included as Annex C to the Proxy Statement/Prospectus/Information Statement filed on February 14, 2018 and incorporated herein by reference). | |
| | Employment Agreement between Lazydays Holdings, Inc. and William Murnane (filed as Exhibit 10.11 to the Registration Statement on Form S-4 (SEC File No. 333-221723) and incorporated herein by reference). |
Exhibit Number | | | Description |
| | Employment Agreement, by and between the Company and Robert DeVincenzi, dated January 3, 2022 (filed as Exhibit 10.1 to the Quarterly Report on Form 10-Q for the quarter ended March 31, 2022 and incorporated herein by reference). | |
| | Amended and Restated Employment Agreement, dated September 6, 2022, by and between the Company and John North (filed as Exhibit 10.1 to the Quarterly Report on Form 10-Q for the quarter ended September 30, 2022 and incorporated herein by reference). | |
| | Employment Agreement, by and between the Company and Kelly Porter, dated October 3, 2022 (filed as Exhibit 10.6 to the Annual Report on Form 10-K for the year ended December 31, 2022 and incorporated herein by reference). | |
| | Transition Agreement, dated October 19, 2022, by and between the Company and Nicholas Tomashot (filed as Exhibit 10.7 to the Annual Report on Form 10-K for the year ended December 31, 2022 and incorporated herein by reference). | |
| | Second Amended and Restated Credit Agreement dated February 21, 2023 with Manufacturers and Traders Trust Company (“M&T”), as Administrative Agent, Swingline Lender, Issuing Bank and a Lender, and other financial institutions as Lender parties. (filed as Exhibit 10.1 to the Quarterly Report on Form 10-Q for the quarter ended March 31, 2023 and incorporated herein by reference). | |
| | Form of Securities Purchase Agreement (Preferred) (filed as Exhibit 10.13.1 to the Registration Statement on Form S-4 (SEC File No. 333-221723) and incorporated herein by reference). | |
| | Form of Securities Purchase Agreement (Unit) (filed as Exhibit 10.13.2 to the Registration Statement on Form S-4 (SEC File No. 333-221723) and incorporated herein by reference). | |
| | Lease Agreement by and between Cars MTI-4 L.P., as Landlord, and LDRV Holdings Corp., as Tenant (filed as Exhibit 10.14 to the Registration Statement on Form S-4 (SEC File No. 333-221723) and incorporated herein by reference). | |
| | Lease Agreement between Chambers 3640, LLC, as Landlord, and Lazydays Mile HI RV, LLC, as Tenant (filed as Exhibit 10.15 to the Registration Statement on Form S-4 (SEC File No. 333-221723) and incorporated herein by reference). | |
| | Lease Agreement between 6701 Marketplace Drive, LLC, as Landlord, and Lazydays RV America, LLC, as Tenant (filed as Exhibit 10.16 to the Registration Statement on Form S-4 (SEC File No. 333-221723) and incorporated herein by reference). | |
| | Lease Agreement between DS Real Estate, LLC, as Landlord, and Lazydays RV Discount, LLC, as Tenant (filed as Exhibit 10.17 to the Registration Statement on Form S-4 (SEC File No. 333-221723) and incorporated herein by reference). | |
| | Restated Credit Agreement, dated as of July 14, 2021, by and among LDRV Holdings Corp., Lazydays RV America, LLC, Lazydays RV Discount, LLC and Lazydays Mile HI RV, LLC, Manufacturers and Traders Trust Company, as Administrative Agent, Swingline Lender, Issuing Bank and a Lender, and other financial institutions as Lender parties thereto (filed as Exhibit 10.1 to the Quarterly Report on Form 10-Q for the quarter ended September 30, 2021 and incorporated herein by reference). | |
| | First Amendment to Amended and Restated Credit Agreement, dated as of May 13, 2022, by and among LDRV Holdings Corp., Lazydays RV America, LLC, Lazydays RV Discount, LLC and Lazydays Mile HI RV, LLC, Manufacturers and Traders Trust Company, as Administrative Agent, Swingline Lender, Issuing Bank and a Lender, and other financial institutions as Lender parties (filed as Exhibit 10.1 to the Current Report on Form 8-K filed on May 17, 2022 and incorporated herein by reference). | |
| | Security Agreement, dated March 15, 2018, by and between LDRV Holdings Corp., Lazydays RV America, LLC, Lazydays RV Discount, LLC, and Lazydays Mile HI RV, LLC, as Borrowers, Lazydays Holdings Inc., Lazy Days’ R.V. Center, Inc., Lazydays RV America, LLC, and Lazydays Land Holdings, LLC, as Guarantors, and Manufacturers and Traders Trust Company, as administrative agent under the Credit Agreement of even date therewith (filed as Exhibit 10.11 to the Form 8-K filed on March 21, 2018 and incorporated herein by reference). | |
| | Guaranty Agreement, dated March 15, 2018, by certain parties named therein (filed as Exhibit 10.12 to the Form 8-K filed on March 21, 2018 and incorporated herein by reference). |
Exhibit Number | | | Description |
| | Form of Registration Rights Agreement between Lazydays Holdings, Inc. and the PIPE investors (filed as Exhibit 10.13 to the Registration Statement on Form S-1 (SEC File No. 333-224063) filed on March 30, 2018 and incorporated herein by reference). | |
| | Form of Registration Rights Agreement between Lazydays Holdings, Inc. and the PIPE investors (filed as Exhibit 10.14 to the Registration Statement on Form S-1 (SEC File No. 333-224063) filed on March 30, 2018 and incorporated herein by reference). | |
| | Employment Offer Letter between Lazydays Holdings, Inc. and Nicholas Tomashot (filed as Exhibit 10.15 to Amendment No. 2 to the Registration Statement on Form S-1 (SEC File No. 333-224063) filed on May 22, 2018 and incorporated herein by reference). | |
| | Lazydays Holdings, Inc. 2019 Employee Stock Purchase Plan (filed as Exhibit 10.1 to the Form 8-K filed on May 23, 2019 and incorporated herein by reference). | |
| | Lazydays Holdings, Inc. Amended and Restated 2018 Long Term Incentive Plan (filed as Exhibit 10.21 to the Annual Report on Form 10-K for the year ended December 31, 2022 and incorporated herein by reference). | |
| | Form of Term Note (U.S. Small Business Administration Paycheck Protection Program) in favor of M&T Bank (filed as Exhibit 10.1 to the Form 8-K filed on May 4, 2020 and incorporated herein by reference) | |
| | Subsidiaries of the Company (filed as Exhibit 21.1 to the Annual Report on Form 10-K for the year ended December 31, 2022 and incorporated herein by reference). | |
| | Consent of RSM US LLP. | |
| | Consent of Paul Hastings LLP (included in Exhibit 5.1). | |
| | Powers of Attorney (included in the signature page hereto). | |
| | Form of Instructions for Use of Lazydays Holdings, Inc.’s Rights Certificates. | |
| | Form of Letter to Stockholders who are Record Holders. | |
| | Form of Letter to Brokers and Other Nominee Holders. | |
| | Form of Letter to Clients of Brokers and Other Nominee Holders. | |
| | Form of Beneficial Owner Election Form. | |
| | Form of Nominee Holder Certification. | |
| | Form of Notice of Guaranteed Delivery. | |
| | Filing Fee Table |
* | Filed herewith. |
** | To be filed by amendment. |
+ | Indicates management contract or compensatory plan. |
(b) | Financial statement schedules. |
Item 17. | Undertakings. |
(a) | The undersigned registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: if the registrant is subject to Rule 430C (§230.430C of this chapter), each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A (§230.430A of this chapter), shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424 (§230.424 of this chapter); |
(ii) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act, as amended, may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
(d) | The undersigned registrant hereby undertakes that: |
(1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(I) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and |
(2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| | LAZYDAYS HOLDINGS, INC. | ||||
| | |||||
| | By: | | | /s/ John North | |
| | | | John North | ||
| | | | Chief Executive Officer |
Signature | | | Title | | | Date |
| | | | |||
/s/ John North | | | Chief Executive Officer and Director (Principal Executive Officer) | | | September 12, 2023 |
John North | | | ||||
| | | | |||
/s/ Kelly Porter | | | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | | | September 12, 2023 |
Kelly Porter | | | ||||
| | | | |||
/s/ Christopher S. Shackelton | | | Director and Chairman of the Board | | | September 12, 2023 |
Christopher S. Shackelton | | | | | ||
| | | | |||
/s/ Robert DeVincenzi | | | Lead Independent Director | | | September 12, 2023 |
Robert DeVincenzi | | | | | ||
| | | | |||
/s/ Jordan Gnat | | | Director | | | September 12, 2023 |
Jordan Gnat | | | | | ||
| | | | |||
/s/ Erika Serow | | | Director | | | September 12, 2023 |
Erika Serow | | | | | ||
| | | | |||
/s/ James J. Fredlake | | | Director | | | September 12, 2023 |
James J. Fredlake | | | | | ||
| | | | |||
/s/ Jerry Comstock | | | Director | | | September 12, 2023 |
Jerry Comstock | | | | |
Dated: | | | | | ||
| | | | |||
| | |||||
Chief Executive Officer | | | Secretary |
By mail:* | | | By hand delivery or overnight courier, excluding U.S. Postal Service: |
| | ||
Broadridge Corporate Issuer Solutions, LLC Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 | | | Broadridge Corporate Issuer Solutions, LLC Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
FORM 1-EXERCISE OF RIGHTS To invest and purchase shares pursuant to your Basic Subscription Right, please complete lines (a) and (c) and sign under Form 3 below. To invest and purchase shares pursuant to your Over-Subscription Right, please also complete line (b) and sign under Form 3 below. To the extent your investment exceeds shares that you are entitled under either the Basic Subscription Right or the Over-Subscription Right, you will be deemed to have elected to purchase the maximum number of shares for which you are entitled to under the Basic Subscription Right or Over-Subscription Right, as applicable. | | | FORM 2-DELIVERY TO DIFFERENT ADDRESS If you wish for the Common Stock underlying your Rights, or a certificate representing unexercised Rights to be delivered to an address different from that shown on the face of this Rights Certificate, please enter the alternate address below, sign under Form 3 and have your signature guaranteed under Form 4. | ||||||||||||||||||
| | | | | | | | | | | | | | ||||||||
(a) EXERCISE OF BASIC SUBSCRIPTION RIGHT: | | | FORM 3-SIGNATURE TO SUBSCRIBE: I acknowledge that I have received the Prospectus for the rights offering and I hereby irrevocably invest the amount indicated under Form 1 above on the terms and conditions specified in the Prospectus. This Form 3 must be signed by the registered holder(s) exactly as their name(s) appear(s) on the certificate(s) or by person(s) authorized to sign on behalf of the registered holder(s) by documents transmitted herewith. | ||||||||||||||||||
| | | | | | | | | | | |||||||||||
I apply for: | | | shares | | | x | | | $[•] | | | = | | | $ | | |||||
| (no. of new shares of Common Stock) | | | | | (Subscription Price) | | | | | (amount enclosed) | | |||||||||
| | | | | | | | | | | | | | ||||||||
(b) EXERCISE OF OVER-SUBSCRIPTION RIGHT If you have exercised your Basic Subscription Right in full and wish to purchase additional shares of Common Stock pursuant to your Over-Subscription Right: | | | FORM 4-SIGNATURE GUARANTEE This form must be completed if you have completed any portion of Form 2. | ||||||||||||||||||
| | | | | | | | | | | | | | ||||||||
I apply for: | | | shares | | | x | | | $[•] | | | = | | | $ | | | | | ||
| (no. of new shares of Common Stock) | | | | | (Subscription Price) | | | | | (amount enclosed) | | | | | ||||||
| | | | | | | | | | | | | | ||||||||
(c) Total Amount of Payment Enclosed = $ | | | Signature Guaranteed: | | | ||||||||||||||||
| | | | | | | | | | | | | | (Name of Bank or Firm) | |||||||
| | | | | | | | | | | | | |
METHOD OF PAYMENT (CHECK ONE) | | | By: | | | ||||||||||||||||
| | | | | | | | | | | | | | (Signature of Officer) | |||||||
☐ | | | Certified Bank or Cashier’s Check upon a U.S. bank payable to “Broadridge Corporate Issuer Solutions, LLC, as Subscription Agent for Lazydays Holdings, Inc.” | | | | | ||||||||||||||
☐ | | | Wire transfer of immediately available funds directly to the account maintained by Broadridge Corporate Issuer Solutions, LLC, as Subscription Agent, for purposes of accepting subscriptions in this Rights Offering to [•]), for credit to for Broadridge Corporate Issuer Solutions, LLC, ABA No. [•], further credit to Account Number [•]]1, with reference to the Rights holder’s name. | | | IMPORTANT: The signature(s) should be guaranteed by an eligible guarantor institution (bank, stock broker, savings & loan association or credit union) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15. |
1 | To be confirmed |
A.
|
Shall have no duties or obligations other than those set forth herein, including those described under “Included Services” on Exhibit A, and no duties or obligations
shall be inferred or implied, nor shall Agent be obligated nor expected to perform those services described under “Non-Included Services” on Exhibit A;
|
B.
|
May rely on and shall be authorized and held harmless in respect of any action taken, suffered or omitted to be taken by Agent in connection with its administration of this Agreement and the exercise and performance of its duties
hereunder in reliance upon any certificate, instrument, opinion, notice, letter, affidavit, power of attorney, endorsement, consent, direction, telegram, telex, facsimile transmission, email, electronic transmission or other paper or
document or security delivered to you and believed by you to be genuine and to have been signed or transmitted, executed and, where necessary, verified or acknowledged by the proper party or parties;
|
C.
|
may rely on and shall be authorized and protected in acting or failing to act upon any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer
Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing;
|
D.
|
May rely on and shall be held harmless by the Company in acting upon written or oral instructions from the Company with respect to any matter relating to its acting as Agent;
|
E.
|
May consult with counsel reasonably satisfactory to it (including counsel for the Company) and shall be held harmless by the Company in relying on the advice or opinion of such counsel in respect of any
action taken, suffered or omitted by it hereunder in good faith and in accordance with such advice or opinion of such counsel;
|
F.
|
Shall make the final determination as to whether or not a rights certificate received by Agent is duly, completely and correctly executed in order to qualify for the Rights Offering and Agent shall be held
harmless by the Company in respect of any action taken, suffered or omitted by Agent hereunder in good faith and in accordance with its determination;
|
G.
|
Shall not be obligated to take any action hereunder which might, in its reasonable judgment subject or expose it to any expense or liability unless it shall have been furnished
with an indemnity satisfactory to it;
|
H.
|
shall not be required to perform any action if such action would cause Agent to violate any applicable law, regulation or court order;
|
I.
|
shall not be deemed to have any knowledge of any event which it was supposed to receive notice thereof hereunder, and Agent shall be fully protected and shall incur no liability for failing to take any action in connection therewith,
unless and until it has received such notice in writing;
|
J.
|
shall not have any liability for or be under any responsibility in respect of any breach by the Company of any covenant or condition contained in this Agreement;
|
K.
|
Shall not be liable or responsible for any recital or statement contained in any Offering Document or any other documents relating thereto, unless such statement was provided or
confirmed in writing by the Agent; and
|
L.
|
Shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to the Offering, including without limitation obligations under
applicable regulation or law.
|
A. |
The Company covenants and agrees to indemnify and to hold harmless Agent, its affiliates and their respective successors, and each of its and their respective current and former directors, officers, employees,
consultants and affiliates (each an “Agent Indemnitee”), to the fullest extent permitted by law, against any and all penalties, fines, charges,
damages, losses, costs, and other liabilities (whether direct, joint and several or otherwise), including full reimbursement for any and all fees, costs and expenses (in all such cases, whether legal or otherwise) as and when incurred by
Agent (collectively, “Losses”) arising out of or relating to any suit, claim, demand, proceeding, and cause of action (“Claims”) to which Agent or an Agent Indemnitee may become subject, arising out of or incident to this Agreement, including but not limited to: (i) Agent’s good
faith performance of its duties under this Agreement, (ii) Agent’s compliance with instructions set forth herein or with any instructions delivered to the Agent pursuant hereto, (iii) Losses suffered or incurred as a result of
defending itself against any claim or liability resulting from its actions as Agent, including any claim against Agent by any Company stockholder or the Company, (iii) Company’s breach of this Agreement or (iv)
the determination and enforcement by Agent of its rights pursuant to this Agreement (including, without limitation, this Section), which covenant and agreement to indemnify shall survive the termination hereof. Promptly after the receipt by Agent of notice of any Claim, or the commencement of any action, suit, proceeding or investigation, Agent shall notify the Company thereof in writing. However, failure to so notify the
Company shall not operate in any manner whatsoever to relieve the Company from any liability which it may have on account of this Section 7 if no prejudice occurs. The Company shall be entitled to participate,
at its own expense, in the defense of any such Claim, and, if it so elects at any time after receipt of such notice, it may assume the defense of any suit brought to enforce any such Claim. Neither Agent nor the Company shall, without the
other party’s prior written consent, settle or compromise or consent to the entry of any judgment to any pending or threatened action in respect of which indemnification may be sought hereunder.
|
B. |
In the event any question or dispute arises with respect to the proper interpretation of this Agreement or Agent’s duties hereunder or the rights of the Company or of any Stockholders exercising Subscription Rights
in the Rights Offering, Agent shall not be required to act and shall not be held liable or responsible for refusing to act until the question or dispute has been judicially settled (and Agent may, if it deems it advisable, but shall not be
obligated to, file a suit in interpleader or for a declaratory judgment for such purpose) by final judgment rendered by a court of competent jurisdiction, binding on all stockholders and parties interested in the matter which is no longer
subject to review or appeal, or settled by a written document in form and substance satisfactory to the Agent and executed by the Company and each such stockholder and party. In addition, Agent may require for such purpose, but shall not be
obligated to require, the execution of such written settlement by all the stockholders and all other parties that may have an interest in the settlement.
|
A. |
Notwithstanding anything in this Agreement to the contrary, Agent shall only be liable for its gross negligence or willful misconduct (each as determined by a court of competent jurisdiction).
|
B. |
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING BUT
NOT LIMITED TO LOST PROFITS, LOSS OF SAVINGS OR REPUTATIONAL HARM) UNDER ANY PROVISION OF THIS AGREEMENT OR FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES OR LOSSES ARISING OUT OF ANY ACT OR FAILURE TO ACT HEREUNDER
EVEN IF THAT PARTY HAS BEEN ADVISED OF OR HAS FORESEEN THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
|
This Section allocates the risks under this Agreement between Agent and Company and is viewed by the parties as an integral part of the business arrangement between them. The pricing and other terms and conditions of this Agreement and
any schedule hereto reflect this allocation of risk and the limitations specified herein.
|
If to the Company, to:
|
Lazydays Holdings, Inc.
4042 Park Oaks Blvd., Suite 350 Tampa, Florida 33610 and a copy via email to
investors@lazydays.com
Attention: Investor Relations
|
|
If to the Agent, to:
|
Broadridge Corporate Issuer Solutions, LLC
51 Mercedes Way
Edgewood, NY 11717
Attn: Corporate Actions Department
with a copy (which shall not constitute notice) to:
Broadridge Financial Solutions, Inc.
2 Gateway Center
Newark, New Jersey 07102,
and a copy via email to
legalnotices@broadridge.com
in each case, Attention: General Counsel
|
BROADRIDGE CORPORATE ISSUER SOLUTIONS, LLC
|
Lazydays Holdings, INC.
|
||
By:
|
By:
|
||
Title:
|
Title:
|
• |
Postage with shared Pre-Sort savings (to be paid in advance) 2
|
• |
Overnight delivery / courier service / photocopy service
|
• |
Envelopes – outer and BRE (Business Reply Envelopes) 1
|
• |
Brochures and enrollment materials
|
• |
Insurance and courier fees
|
• |
Printing of check forms and blank stock certificates
|
• |
Designating a corporate action account manager to communicate with all parties hereto and their counsel to establish the terms, timing and procedures required to carry out Subscription Agent duties, including document review and
execution of legal agreements, rights certificates and other Rights Offering documents and communication materials, project management, and on-going project updates and reporting.
|
• |
Designating an Information Agent account manager to review and become familiar with all Offering Documents and provide expert assistance to holders of Common Stock related to matters concerning the Rights Offering.
|
• |
Preparing mailings that include name, address for the mailing of Offering Documents.
|
• |
Collating and assembling Offering Documents and envelopes for mailing.
|
• |
Addressing and enclosing Offering Documents and return envelopes, for one-time, one-day mailing to holders of Common Stock.
|
• |
Receiving, opening and logging in returned rights certificates.
|
• |
Checking rights certificates for validity against master list.
|
• |
Checking for proper execution of all of rights certificates and other documents necessary to effect a proper exercise of Subscription Rights, including W-9s (if applicable).
|
• |
Curing defective subscriptions, including writing holders of Common Stock in connection with unsigned or improperly executed rights certificates and other Offering Documents.
|
• |
Soliciting by mail W-9s from holders of Common Stock who have not executed them or whose TIN’s do not match our records.
|
• |
Tracking and reporting as required the number of shares of Common Stock to which stockholders have subscribed.
|
• |
Sealing, addressing, posting (not including postage), and providing envelopes for mailing to holders of Common Stock.
|
• |
Providing stockholder relations services to all holders of Common Stock related to the Rights Offering, including phone, email, and regular mail inquiries.
|
• |
Beneficial Holder Distribution – Invoiced separately and at standard beneficial rates
|
• |
Services associated with new duties, legislation or regulations which become effective after the date of this Agreement (these will be provided on an appraisal basis)
|
• |
Reasonable legal review fees if referred to outside counsel upon receipt of prior approval of the Company
|
• |
Overtime charges at 100% assessed in the event of late delivery of material for mailings, unless the target mail date is rescheduled
|
• |
Dedicated Toll Free 800 Number
|
Exhibit 5.1 |
Re: |
Registration Statement on Form S-1
|
i.
|
the Registration Statement;
|
ii.
|
the form of Subscription and Information
Agent Agreement, by and between the Company and Broadridge Corporate Issuer Solutions, LLC;
|
iii.
|
the Certificate of Incorporation of the Company, as amended from time to time, as certified as of September [•], 2023 by the
Secretary of State of the State of Delaware;
|
iv.
|
the By-Laws of Lazydays Holdings, Inc., as presently in effect, as certified by an officer of the Company as of September [•],
2023;
|
v.
|
a certificate, dated as of September [•], 2023, from the Secretary of State of the State of Delaware certifying as to the
existence and good standing of the Company under the laws of the State of Delaware (the “Good Standing Certificate”);
and
|
vi.
|
resolutions adopted by the Finance Committee of the board of directors of the Company, dated August 31, 2023, relating to the
proposed issuance of the Rights and Shares and the Registration Statement and other matters related thereto, as certified by an officer of the Company as of September [•], 2023 (the “Board Resolutions”).
|
1. | Method of Subscription — Exercise of Rights. |
• | certified bank or cashier’s check drawn upon a U.S. bank payable to “Broadridge Corporate Issuer Solutions, LLC; or” |
• | wire transfer of immediately available funds directly to the following account, with reference to the Rights holder’s name: |
By mail:* | | | By hand delivery or overnight courier, excluding U.S. Postal Service: |
| | ||
Broadridge Corporate Issuer Solutions, LLC Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 | | | Broadridge Corporate Issuer Solutions, LLC Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
2. | Issuance of Common Stock |
(a) | Basic Subscription Right. If you are a holder of record of shares, all shares that you purchase in the Rights Offering will be issued in book-entry, or uncertificated, form meaning that you will receive a direct registration (DRS) account statement from the Company’s transfer agent, Continental Stock Transfer & Trust Company, reflecting ownership of the Common Stock. If your shares of Common |
(b) | Over-Subscription Right. As soon as practicable after the Expiration Date and after all prorations and adjustments contemplated by the terms of the Rights Offering have been effected, the Company's transfer agent, Continental Stock Transfer & Trust Company, will mail to each Rights holder that has fully subscribed for its Basic Subscription Right and that validly exercises the Over-Subscription Right a direct registration (DRS) account statement from the Company’s transfer agent, Continental Stock Transfer & Trust Company, reflecting ownership of the Common Stock allocated to such Rights holder pursuant to the Over-Subscription Right. If your shares of Common Stock are registered in the name of a broker, dealer, bank or other nominee, your shares of Common Stock will be issued to the same account, and you may request a statement of ownership from the nominee following the expiration of the Rights Offering. |
(c) | Excess Cash Payments. As soon as practicable after the Expiration Date and after all prorations and adjustments contemplated by the terms of the Rights Offering have been effected, any excess subscription payments received in payment of the Subscription Price by the Subscription Agent will be mailed to each Rights holder, without interest or penalty. |
3. | Commissions, Fees, and Expenses |
4. | Execution |
(a) | Execution by Registered Holder. The signature on the Rights Certificate must correspond with the name of the registered holder exactly as it appears on the face of the Rights Certificate without any alteration or change whatsoever. Persons who sign the Rights Certificate in a representative or other fiduciary capacity must indicate their capacity when signing and, unless waived by the Subscription Agent in its sole and absolute discretion, must present to the Subscription Agent satisfactory evidence of their authority to so act. |
(b) | Execution by Person Other than Registered Holder. If the Rights Certificate is executed by a person other than the holder named on the face of the Rights Certificate, proper evidence of authority of the person executing the Rights Certificate must accompany the same unless, for good cause, the Subscription Agent dispenses with proof of authority. |
(c) | Signature Guarantees. Your signature must be guaranteed by an eligible institution if you specify special payment or delivery instructions. |
5. | Method of Delivery. |
• | the Subscription Agent receives a certified bank or cashier’s check drawn upon a U.S. bank payable to the Subscription Agent; or |
• | the Subscription Agent receives a wire transfer of immediately available funds. |
6. | Determinations Regarding the Exercise of Your Rights. |
1. | Prospectus; |
2. | Rights Certificate; |
3. | Instructions for Use of Lazydays Holdings, Inc. Rights Certificate; |
4. | Notice of Guaranteed Delivery; and |
5. | A return envelope addressed to the Subscription Agent. |
| | Very truly yours, | |
| | ||
| | Lazydays Holdings, Inc. |
• | To the extent the aggregate Subscription Price of the maximum number of Unsubscribed Shares available to a Rights holder pursuant to the Over-Subscription Right is less than the amount the holder of Rights actually paid in connection with the exercise of the Over-Subscription Right, the Rights holder will be allocated only the number of Unsubscribed Shares available to it promptly after the Expiration Date, and the Rights holder’s excess subscription payment received by the Subscription Agent will be returned, without interest or penalty, as soon as practicable. |
• | To the extent the amount the Rights holder actually paid in connection with the exercise of the Over-Subscription Right is less than or equal to the aggregate Subscription Price of the maximum number of Unsubscribed Shares available to the Rights holder pursuant to the Over-Subscription Right, such Rights holder will be allocated the number of Unsubscribed Shares for which it actually paid in connection with the Over-Subscription Right. |
| | Very truly yours, | |
| | ||
| | Lazydays Holdings, Inc. |
| | Very truly yours, |
| | Number of Whole Shares Subscribed for | | | | | Subscription Price | | | | | Payment | |||
Basic Subscription Right | | | | | x | | | $[•] | | | = | | | $ (Line 1) | |
Over-Subscription Right | | | | | x | | | $[•] | | | = | | | $ (Line 1) | |
Total Payment Required | | | | | | | | | | | $ (Sum of Lines 1 and 2) |
Type of Account: | | | | | ||
Account No.: | | | | |
☐ | irrevocably elect to invest the amount indicated above to purchase Shares upon the terms and conditions specified in the prospectus; and |
☐ | agree that if I (we) fail to deliver the amount I (we) have elected to invest, you may exercise any remedies available to you under law. |
Name of Beneficial Owner(s): | | | |
Signature of Beneficial Owner(s): | | |
Name: | | | |
Capacity: | | | |
Address (including zip code): | | | |
Telephone Number: | | |
(1) | the undersigned has exercised, on behalf of the beneficial owners thereof (which may include the undersigned), the number of Rights to purchase the number of shares of Common Stock specified below pursuant to the Basic Subscription Right (as defined in the Prospectus) and, on behalf of beneficial owners of Rights who have subscribed for the purchase of additional shares of Common Stock pursuant to the Over-Subscription Right (as defined in the Prospectus), the number of shares specified below pursuant to the Over-Subscription Right, listing separately below each such exercised Basic Subscription Right and the corresponding Over-Subscription Right (without identifying any such beneficial owner), and |
(2) | to the extent a beneficial owner has elected to subscribe for shares of Common Stock pursuant to an Over-Subscription Right, each such beneficial owner's Basic Subscription Right has been exercised in full. |
Number of Shares of Common Stock Owned on the Record Date | | | Number of Shares of Common Stock Subscribed for Pursuant to Basic Subscription Right | | | Number of Shares of Common Stock Subscribed for Pursuant to Over-Subscription Right | |||
1. | | | | | | | |||
2. | | | | | | | |||
3. | | | | | | | |||
4. | | | | | | | |||
5. | | | | | | | |||
6. | | | | | | | |||
7. | | | | | | | |||
8. | | | | | | | |||
9. | | | | | | |
| | | | ||||||
Name of Nominee Holder | | | | | Depository Trust Company (“DTC”) Participant Number | ||||
| | | | | | ||||
By: | | | | | | | |||
Name: | | | | | DTC Basic Subscription Confirmation Number(s) | ||||
Title: | | | | | |||||
Phone Number: | | | | | |||||
Fax Number: | | | | | |||||
| | | | | | ||||
| | | | ||||||
Dated | | | | |
By mail:* | | | By hand delivery or overnight courier, excluding U.S. Postal Service: |
| | ||
Broadridge Corporate Issuer Solutions, LLC Attn: BCIS Re-Organization Dept. P.O. Box 1317 Brentwood, NY 11717-0718 | | | Broadridge Corporate Issuer Solutions, LLC Attn: BCIS IWS 51 Mercedes Way Edgewood, NY 11717 |
No. of whole shares subscribed for pursuant to exercise of Basic Subscription Right: | | | |
plus | | | |
No. of additional shares subscribed for pursuant to exercise of Over-Subscription Right: | | | |
TOTAL SHARES SUBSCRIBED: | | | |
times Subscription Price per whole share | | | |
TOTAL PAYMENT DUE: | | |
☐ | | | is being delivered to the Subscription Agent herewith; or |
| | ||
☐ | | | has been delivered separately to the Subscription Agent, and is or was delivered in the manner set forth below (check appropriate box and complete information relating thereto): |
| | ||
☐ | | | certified bank or cashier’s check drawn upon a U.S. bank payable to “Broadridge Corporate Issuer Solutions, LLC”; or |
| | ||
☐ | | | wire transfer of immediately available funds |
| | Name of maker: | | | |||||||||||
| | Date of check, draft or money order: | | | |||||||||||
| | Bank on which check is drawn or issuer of money order: | | | |||||||||||
| | Check, wire reference or identifying number: | | |
Signature(s): | | | | | ||
Name(s): | | | | | ||
Address: | | | | | ||
| | | | |||
| | | | |||
Telephone: | | | | | ||
| | (please print or type) | | | ||
Account No.(s): | | | | |
Dated: | | | |
(Address) | |||
(Name of Firm) | |||
(Area Code and Telephone Number) | |||
(Authorized Signature) |
Security
Type |
Security
Class Title
|
Fee Calculation
Rule |
Amount
Registered
|
Proposed Maximum Offering Price Per Share
|
Maximum Aggregate Offering Price(1)
|
Fee Rate
|
Amount of Registration Fee
|
|||||||||||
Fees to Be
Paid
|
Equity
|
Common Stock,
par value $0.0001 per share,
issuable upon exercise of Rights
|
457(o)
|
—
|
$—
|
$10,000,000
|
0.00011020
|
$1,102.00
|
||||||||||
Fees
Previously
Paid
|
||||||||||||||||||
Total Offering Amounts
|
$10,000,000
|
$1,102.00
|
||||||||||||||||
Total Fees Previously Paid
|
—
|
|||||||||||||||||
Total Fee Offsets
|
—
|
|||||||||||||||||
Net Fee Due
|
$1,102.00
|
(1)
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”).
|
'0 0V]P>7)I9VAT($AE=VQE='0@
M4&%C:V%R9"P@,C P- !S9C,R !#$0 7?___S)@ !Y0 /V/___[
MH?___:( /; # =?_; $, 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$!
M 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! ?_; $,! 0$!
M 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$! 0$!
M 0$! 0$! 0$! 0$! 0$! ?_ !$( )X"7@,!(@ "$0$#$0'_Q ? !!0$!
M 0$! 0 0(#! 4&!P@)"@O_Q "U$ " 0,# @0#!04$! 7T!
M @, !!$%$B$Q008346$'(G$4,H&1H0@C0K'!%5+1\"0S8G*""0H6%Q@9&B4F
M)R@I*C0U-C "#C!'*G/?CGVII>W9_)"-/$
MN#O#%1E><\\G![$9Q[9S]^_MJ_LM?#S]ECQ ? &F>/=/\5ZW&\D SA=KJ7NXG/!).XY/6OYLWMY[
MF/[->R8O;@LMPQ+ BV^]"YZG+8^]G)XS6U?%IN,8NZ44[KO))M.Z>JVOZ['/
MDF&:BV27]
M:^EMC]K?^"R?[-
>O\ 1P:X=TD,N70@
MALG(QR,$JM:%3?W=;6LE?7YO35&'_$2.':"=
ML71I?X:BBWM;9J_9[Z;WW7QI*TA !EC/'0.I_D23CVP![9K/?+$;@[?,.54L
M< CD8]NG/TK])]%_X)K_ !6GDC.JPZ?8(M>T:/\
M\$O6D6-]2\:ZK9,"I=+:VTR91R"0"V"<8/'&