As filed with the Securities and Exchange Commission
on November 5, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Limbach Holdings, Inc.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
46-5399422 |
|
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer
identification number) |
797 Commonwealth Drive
Warrendale, Pennsylvania 15086
(412) 359-2100
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Michael M. McCann
President and Chief Executive Officer
797 Commonwealth Drive
Warrendale, Pennsylvania 15086
(412) 359-2100
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
The Commission is requested to send copies
of all communications to:
Jeremiah G. Garvey
Cozen O’Connor
One Oxford Centre
301
Grant Street, 41st Floor
Pittsburgh, Pennsylvania 15219
(412) 620-6500
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. ¨
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. x
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act:
| Large accelerated filer |
¨ |
Accelerated filer |
x |
| Non-accelerated filer |
¨ |
Smaller reporting company |
x |
| |
|
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. ¨
PROSPECTUS
Limbach Holdings, Inc.
Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Units
Warrants
We, or one or more selling securityholders to
be identified in the future, may from time to time offer the securities listed above, or any combination thereof, in each case in one
or more offerings in amounts, at prices, and on terms determined at the time of such offering or offerings.
This prospectus provides you with a general description
of the securities. Each time we offer and sell securities pursuant to this prospectus we will provide a supplement to this prospectus
that contains specific information about the offering, as well as the amounts, prices and terms of the securities. The supplement may
also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus
and the applicable prospectus supplement before you invest in any of our securities.
We and any one or more selling securityholders
may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers
and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are involved
in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement between or
among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. No securities
may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering
of such securities.
INVESTING IN OUR SECURITIES INVOLVES RISKS.
WE STRONGLY RECOMMEND THAT YOU READ CAREFULLY THE RISKS WE DESCRIBE IN THIS PROSPECTUS AND IN ANY ACCOMPANYING PROSPECTUS SUPPLEMENT,
AS WELL AS THE RISK FACTORS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS FROM OUR FILINGS MADE WITH THE SECURITIES AND EXCHANGE
COMMISSION. SEE “RISK FACTORS” ON PAGE 5 OF THIS PROSPECTUS.
Our common stock is listed on the Nasdaq Capital
Market under the symbol “LMB.”
You should carefully read this prospectus, any
applicable prospectus supplement and the information described under the headings “Where You Can Find More Information” and
“Incorporation by Reference” before you invest in any of these securities. This prospectus may not be used to sell securities
in a primary offering by us unless it is accompanied by a prospectus supplement that describes the securities being offered.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved the securities we may be offering or determined that this prospectus is
accurate or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is November 5,
2024
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the U.S. Securities and Exchange Commission (the “SEC”) using a “shelf” registration process.
By using a shelf registration statement, we may sell securities from time to time and in one or more offerings. This prospectus provides
you with a general description of the securities we may offer. Each time that we offer and sell securities, we will provide a prospectus
supplement to this prospectus that contains specific information about the securities being offered and sold and the specific terms of
that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information
relating to these offerings. The prospectus supplement or free writing prospectus may also add, update or change information contained
in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable
prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable.
Before purchasing any securities, you should carefully read both this prospectus and the applicable prospectus supplement (and any applicable
free writing prospectuses), together with the additional information described under the heading “Where You Can Find More Information;
Incorporation by Reference.”
We have not authorized any other person to provide
you with any information or to make any representations other than those contained in this prospectus, any applicable prospectus supplement
or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can
provide no assurance as to the reliability of, any other information that others may give you. We will not make an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus
and the applicable prospectus supplement to this prospectus is accurate only as of the date on its respective cover, that the information
appearing in any applicable free writing prospectus is accurate only as of the date of that free writing prospectus, and that any information
incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our
business, financial condition, results of operations and prospects may have changed since those dates. This prospectus incorporates by
reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry
statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe
these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified
this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus,
any prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties
and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in
this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other
documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
Unless we state otherwise or the context otherwise
requires, references in this prospectus to “we,” “our,” “us,” “the Company” or “Successor”
are to Limbach Holdings, Inc., a Delaware corporation, together with our consolidated subsidiaries, following the business combination
we consummated on July 20, 2016, whereby we acquired all of the outstanding equity of Limbach Holdings LLC, which we refer to in
this prospectus as the “Business Combination.” Any such references relating to periods prior to the Business Combination,
including to “Limbach Holdings LLC” or “Limbach” refer to Limbach Holdings LLC, our accounting predecessor in
the Business Combination. References to “1347 Capital” are to our company prior to completion of the Business Combination
when we were a blank check company with nominal operations. In the Business Combination, we were deemed the accounting acquirer and successor
of Limbach Holdings LLC. Upon the closing of the Business Combination, we changed our name to Limbach Holdings, Inc. When we refer
to “you,” we mean the reader of this prospectus.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated
by reference into it contains forward-looking statements regarding the Company and represents our expectations and beliefs concerning
future events. These forward-looking statements are intended to be covered by the safe harbor for forward-looking statements provided
by the Private Securities Litigation Reform Act of 1995. Forward-looking statements involve known and unknown risks and uncertainties.
The forward-looking statements included herein or incorporated herein by reference include or may include, but are not limited to, (and
you should read carefully) statements that are predictive in nature, depend upon or refer to future events or conditions, or use or contain
words, terms, phrases, or expressions such as “achieve,” “forecast,”, “plan,” “propose,”
“strategy,” “envision,” “hope,” “will,” “continue,” “potential,”
“expect,” “believe,” “anticipate,” “project,” “estimate,” “predict,”
“intend,” “should,” “could,” “may,” “might,” or similar words, terms, phrases
or expressions or the negative of any of these terms. Any statements in this prospectus or incorporated herein by reference that
are not based upon historical fact are forward-looking statements and represent our best judgment as to what may occur in the future.
In addition to the material risks discussed under
the heading “Risk Factors” or incorporated by reference therein that may cause business conditions or our actual results,
performance or achievements to be materially different from those expressed or implied by any forward-looking statements, the following
are some, but not all, of the factors that might cause business conditions or our actual results, performance or achievements to be materially
different from those expressed or implied by any forward-looking statements, or contribute to such differences: (i) intense competition
in our industry; (ii) ineffective management of the size and cost of our operations; (iii) our dependence on a limited number
of customers; (iv) unexpected adjustments to our backlog or cancellations of orders in our backlog; (v) cost of overruns under
our contracts; (vi) timing of the award and performance of new contracts; (vii) significant costs in excess of the original
project scope and contract amount without having an approved change order; (viii) our failure to adequately recover on claims brought
by us against contractors, project owners or other project participants for additional contract costs; (ix) risks associated with
placing significant decision making powers with our subsidiaries' management; (x) acquisitions, divestitures, and other strategic
transactions could fail to achieve financial or strategic objectives, disrupt our ongoing business, and adversely impact our results of
operations; (xi) design errors and omissions in connection with Design/Build and Design/Assist contracts; (xii) delays and/or
defaults in customer payments; (xiii) unsatisfactory safety performance; (xiv) labor disputes with unions representing our employees;
(xv) strikes or work stoppages; (xvi) misconduct by our employees, subcontractors or partners, or our overall failure to comply
with laws or regulations; (xvii) our dependence on subcontracts and suppliers of equipment and materials; (xviii) price increases
in materials; (xix) changes in energy prices; (xx) our inability to identify and contract with qualified Disadvantaged Business
Enterprise contractors to perform as subcontractors; (xxi) reputational harm arising from our participation in construction joint
ventures; (xxii) any difficulties in the financial and surety markets; (xxiii) our inability to obtain necessary insurance due
to difficulties in the insurance markets; (xxiv) our use of the cost-to-cost method of accounting could result in a reduction or
reversal of previously recorded revenue or profits; (xxv) impairment charges for goodwill and intangible assets; (xxvi) unexpected
expenses arising from contractual warranty obligations; (xxvii) increased costs or limited supplies of raw materials and products
used in our operations arising from recent and potential changes in U.S. trade policies and retaliatory responses from other countries;
(xxviii) rising inflation and/or interest rates, or deterioration of the United States economy and conflicts around the world; (xxix) increased
debt service obligations due to our variable rate indebtedness; (xxx) failure to remain in compliance with covenants under our debt
and credit agreements or service our indebtedness; (xxxi) our inability to generate sufficient cash flow to meet all of our existing
or potential future debt service obligations; (xxxii) significant expenses and liabilities arising under our obligation to contribute
to multiemployer pension plans; (xxxiii) a pandemic, epidemic or outbreak of an infectious disease in the markets in which we operate
or that otherwise impacts our facilities or suppliers; (xxxiv) future climate change; (xxxv) market or regulatory responses
to climate change; (xxxvi) increasing scrutiny and changing expectations from investors and customers with respect to our environmental,
social and governance practices; (xxxvii) adverse weather conditions, which may harm our business and financial results; (xxxviii) information
technology system failures, network disruptions or cyber security breaches, events or attacks; (xxxix) changes to our outsourced
software or infrastructure vendors as well as any sudden loss, breach of security, disruption or unexpected data or vendor loss associated
with our information technology systems; (xl) changes in laws, regulations or requirements, or a material failure of any of our subsidiaries
or us to comply with any of them; (xli) becoming barred from future government contracts due to violations of the applicable rules and
regulations; (xlii) costs associated with compliance with environmental, safety and health regulations; and (xliii) our failure to comply
with immigration laws and labor regulations.
Although we believe the expectations reflected
in our forward-looking statements are reasonable, in reading this prospectus and the documents incorporated into this prospectus by reference,
you should consider these factors carefully in evaluating any forward-looking statements and you are cautioned not to place undue reliance
on any forward-looking statements. Each forward-looking statement is made and applies only as of the date of the particular statement,
and we are not obligated to update, withdraw, or revise any forward-looking statements, whether as a result of new information, future
events or otherwise. You should consider these risks when reading any forward-looking statements. All forward-looking statements attributed
or attributable to us or to persons acting on our behalf are expressly qualified in their entirety by this section entitled “Cautionary
Statement Regarding Forward-Looking Statements.”
LIMBACH HOLDINGS, INC.
We are a building systems solution firm that partners
with building owners and facilities managers who have mission critical mechanical (heating, ventilation, air conditioning), electrical,
and plumbing infrastructure. We strive to be an indispensable partner to its customers by providing services that are essential to the
operation of their businesses. We work with building owners primarily in six vertical markets: healthcare, industrial and manufacturing,
data centers, life science, higher education and cultural and entertainment. We have more than 1,300 team members in 19 offices across
the eastern United States. Our team members uniquely combine engineering expertise with field installation skills to provide custom solutions
that leverage its full life-cycle capabilities, which allows it to address both the operational and capital projects needs of its customers.
We are a Delaware corporation and our principal
executive offices are located at 797 Commonwealth Drive, Warrendale, Pennsylvania 15086. Our telephone number at this address is (412)
359-2100. Our website is www.limbachinc.com. Information on, or accessible through, this website is not a part of, and is not incorporated
into, this prospectus.
RISK FACTORS
An investment in our securities involves various
risks. Before making an investment in our securities, you should carefully consider the risks outlined in “Item 1A.—Risk Factors”
of our most recent Annual Report on Form 10-K, any subsequently filed Quarterly Reports on Form 10-Q and any subsequently filed
Current Reports on Form 8-K, which are incorporated herein by reference, and those risk factors that may be included in any accompanying
prospectus supplement as well as the information contained in this prospectus and in any prospectus supplements relating to particular
offers of securities. Any of those risk factors could significantly and adversely affect our business, prospects, financial condition
and results of operations, and the trading price of our securities. Although we describe, and will describe, what we believe to be the
principal risks related to our Company and the securities we offer, we can also be affected by risks we do not anticipate or do not think
will have a material effect upon us.
USE OF PROCEEDS
Unless otherwise indicated
in a prospectus supplement relating to a specific offering, we intend to use the net proceeds from the sale of securities by us under
this prospectus for general corporate purposes, which may include working capital, capital expenditures, operational purposes and potential
acquisitions. We may also use a portion of such net proceeds to acquire or invest in businesses and products that are complementary to
our own.
The intended application
of proceeds from the sale of any particular offering of securities using this prospectus will be described in the accompanying prospectus
supplement relating to such offering. The precise amount and timing of the application of these proceeds will depend on our funding requirements
and the availability and costs of other funds.
DESCRIPTION OF CAPITAL STOCK
The following summary of the material terms of
our securities is not intended to be a complete summary of the rights and preferences of such securities. We urge you to read our Second
Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation’’) in its entirety for a complete
description of the rights and preferences of our securities.
Authorized and Outstanding Stock
Our Certificate of Incorporation authorizes the
issuance of 101,000,000 shares, consisting of 100,000,000 shares of common stock, $0.0001 par value per share, and 1,000,000 shares of
preferred stock, $0.0001 par value. As of November 1, 2024, there were 11,273,101 shares of common stock outstanding, held of record
by 30 holders of record. The number of record holders does not include the Depository Trust Company, or DTC, participants or beneficial
owners holding shares through nominee names. In addition, in connection with the Business Combination, the Company designated 400,000
shares of Preferred Stock as Class A Preferred Stock, all of which were repurchased and none of which are issued or outstanding,
as described below.
Common Stock
Our Certificate of Incorporation provides that
the common stock will have identical rights, powers, preferences and privileges.
Holders of our common stock are entitled to one
vote for each share held on all matters to be voted on by our stockholders.
Holders of common stock will be entitled to receive
such dividends, if any, as may be declared from time to time by our board of directors in its discretion out of funds legally available
therefor. In no event will any stock dividends or stock splits or combinations of stock be declared or made on common stock unless the
shares of common stock at the time outstanding are treated equally and identically.
Our board of directors is divided into three classes,
each of which generally serves for a term of three years with only one class of directors being elected in each year. There is no cumulative
voting with respect to the election of directors, with the result that the holders of more than 50% of the shares eligible to vote for
the election of directors can elect all of the directors.
Our stockholders have no conversion, preemptive
or other subscription rights and there are no sinking fund or redemption provisions applicable to the shares of common stock.
In the event of our voluntary or involuntary liquidation,
dissolution, distribution of assets or winding-up, the holders of the common stock will be entitled to receive an equal amount per share
of all of our assets of whatever kind available for distribution to stockholders, after any rights of the holders of the preferred stock
have been satisfied.
Preferred Stock
Our Certificate of Incorporation authorizes the
issuance of 1,000,000 shares of preferred stock with such designation, rights and preferences as may be determined from time to time by
our board of directors. Accordingly, our board of directors is empowered, without stockholder approval, to issue preferred stock with
dividend, liquidation, conversion, voting or other rights which could adversely affect the voting power or other rights of the holders
of common stock.
In connection with the Business Combination, we
issued and sold to 1347 Investors LLC (the “Sponsor”) our sponsor prior to the completion of the Business Combination, 400,000
shares of Preferred Stock, each of which is designated Class A Preferred Stock pursuant to a Certificate of Designation filed by
us under the Certificate of Incorporation. Each such share of Class A Preferred Stock could be converted (at the holder’s election)
into 2.0 shares of our common stock (as may be adjusted for any stock splits, reverse stock splits or similar transactions), representing
a conversion price of $12.50 per share of our common stock; provided, that such conversion is in compliance with stock exchange listing
requirements. On July 14, 2017, we repurchased an aggregate of 120,000 shares of the Class A Preferred Stock from the Sponsor
for an aggregate sum of approximately $4.1 million in cash. For a period of six months after such repurchase, we had the right to repurchase
from the Sponsor, in one or more transactions, all or a portion of the remaining 280,000 shares of Class A Preferred Stock owned
by the Sponsor for a purchase price equal to 130% of the liquidation value per share plus 130% of any and all accrued but unpaid dividends
thereon as of the date of closing of the purchase of such shares. On January 12, 2018, we exercised our repurchase right with respect
to the remaining 280,000 shares of Class A Preferred Stock for an aggregate purchase price of $10.0 million, including a $2.2 million
premium and accrued but unpaid dividends of $0.9 million. Accordingly, there are no outstanding shares of Class A Preferred Stock.
With respect to additional authorized shares of preferred stock
under our Certificate of Incorporation, our board of directors may, from time to time, authorize the issuance of one or more additional
classes or series of preferred stock by adopting resolutions that establish the number of shares being authorized and describing the
designations, powers, preferences and rights, qualifications, limitations or restrictions on shares of that preferred stock, including
dividend rights, terms of redemption, conversion rights and liquidation preferences. Although we do not currently intend to issue any
other shares of preferred stock, we reserve the right to do so in the future.
The terms of our outstanding senior indebtedness
may restrict preferred stock that by its terms (or by the terms of any other security into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the
occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the senior indebtedness), (b) is
redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends or distributions
in cash, or (d) is convertible into or exchangeable for other indebtedness or any other security that would be subject to clauses
(a) through (c).
The issuance of preferred stock may adversely
affect the rights of our common stockholders by, among other things:
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restricting dividends on the common stock; |
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diluting the voting power of the common stock; |
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impairing the liquidation rights of the common stock; or |
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delaying or preventing a change in control without further action by holders of the preferred stock. |
As a result of these or other factors, the issuance
of preferred stock could have an adverse impact on the market price of our common stock.
Anti-Takeover Provisions of Our Certificate
of Incorporation and Bylaws
The provisions of our Certificate of Incorporation
and our bylaws could have the effect of delaying, deferring or discouraging another person from acquiring control of our company. These
provisions, which are summarized below, may have the effect of discouraging takeover bids. They are also designed, in part, to encourage
persons seeking to acquire control of us to negotiate first with our board of directors. We believe that the benefits of increased protection
of our potential ability to negotiate with an unfriendly or unsolicited acquirer outweigh the disadvantages of discouraging a proposal
to acquire us because negotiation of these proposals could result in an improvement of their terms.
Our Certificate of Incorporation and our bylaws
include a number of provisions that could deter hostile takeovers or delay or prevent changes in control of our company, including the
following:
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Board of Directors vacancies. Our Certificate of Incorporation authorizes our board of directors to fill vacant directorships, including newly created seats. In addition, the number of directors constituting our board of directors is permitted to be set only by a resolution adopted by a majority vote of our board of directors, provided that in the event the outstanding shares of our stock are owned by fewer than three stockholders, the number of directors may be a number not less than the number of stockholders. These provisions prevent a stockholder from increasing the size of our board of directors and then gaining control of our board of directors by filling the resulting vacancies with its own nominees. This makes it more difficult to change the composition of our board of directors but promotes continuity of management. |
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Classified board. Our Certificate of Incorporation provides that our board is classified into three classes of directors, each with staggered three-year terms. A third party may be discouraged from making a tender offer or otherwise attempting to obtain control of us as it is more difficult and time consuming for stockholders to replace a majority of the directors on a classified board of directors. |
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Stockholder action; special meetings of stockholders. Our Certificate of Incorporation provides that our stockholders may not take action by written consent, but may only take action at annual or special meetings of our stockholders. As a result, a holder controlling a majority of our capital stock would not be able to amend our bylaws or remove directors without holding a meeting of our stockholders called in accordance with our bylaws. Further, our bylaws provide that special meetings of our stockholders may be called only by the chairperson of our board of directors, our Chief Executive Officer or our board of directors pursuant to a resolution of a majority of our board of directors, thus prohibiting a stockholder from calling a special meeting. These provisions might delay the ability of our stockholders to force consideration of a proposal or for stockholders controlling a majority of our capital stock to take any action, including the removal of directors. |
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Advance notice requirements for stockholder proposals and director nominations. Our bylaws provide advance notice procedures for stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders. Our bylaws also specify certain requirements regarding the form and content of a stockholder’s notice. These provisions might preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders if the proper procedures are not followed. We expect that these provisions might also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our company. |
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Directors removed only for cause. Our Certificate of Incorporation provides that stockholders may remove directors only for cause, which may delay the ability of our stockholders to remove directors from our board of directors. |
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Issuance of undesignated preferred stock. Subject to the repurchase of all of our previously issued shares of Class A Preferred Stock, our board of directors has the authority, without further action by the stockholders, to issue up to 1,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time by our board of directors. The existence of authorized but unissued shares of preferred stock enables our board of directors to render more difficult or to discourage an attempt to obtain control of us by merger, tender offer, proxy contest or other means. |
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Amendment of charter provisions. Any amendment of the above provisions in our Certificate of Incorporation requires approval by holders of at least 66.667% of our outstanding common stock. |
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No cumulative voting. The Delaware General Corporation Law provides that stockholders are not entitled to the right to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. Our Certificate of Incorporation does not provide for cumulative voting. |
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Choice of forum. Our Certificate of Incorporation provides that the Court of Chancery of the State of Delaware is the exclusive forum for any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our Certificate of Incorporation or our bylaws; or any action asserting a claim against us that is governed by the internal affairs doctrine. This provision is not intended to apply to claims arising under the Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”). To the extent the provision could be construed to apply to such claims, there is uncertainty as to whether a court would enforce the provision in such respect, and our stockholders will not be deemed to have waived our compliance with federal securities laws and the rules and regulations thereunder. |
Registration Rights
We are party to an amended and restated registration
rights agreement, dated July 20, 2017, as amended, whereby we agreed to register the offer and sale from time to time, separately
or together, shares of our common stock issued pursuant to the Business Combination, shares of our common stock underlying certain warrants
and shares of our common stock issued in a private placement prior to and concurrently with our initial public offering.
We will bear the expenses incurred in connection
with the filing of any such registration statements.
Rule 144
Generally
Pursuant to Rule 144, a person who has beneficially
owned restricted shares of our common stock or warrants for at least six months would be entitled to sell their securities provided that
(i) such person is not deemed to have been one of our affiliates at the time of, or at any time during the three months preceding,
a sale and (ii) we are subject to the Exchange Act periodic reporting requirements for at least three months before the sale and
have filed all required reports under Section 13 or 15(d) of the Exchange Act during the 12 months (or such shorter period as
we were required to file reports) preceding the sale.
Persons who have beneficially owned restricted
shares of our common stock or warrants for at least six months but who are our affiliates at the time of, or at any time during the three
months preceding, a sale, would be subject to additional restrictions, by which such person would be entitled to sell within any three-month
period only a number of securities that does not exceed the greater of:
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1% of the total number of shares of common stock then outstanding; or |
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the average weekly reported trading volume of the common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale. |
Sales by our affiliates under Rule 144 are
also limited by manner of sale provisions and notice requirements and to the availability of current public information about us.
Restrictions on the Use of Rule 144 by
Shell Companies or Former Shell Companies
Rule 144 is not available for the resale
of securities initially issued by shell companies (other than business combination related shell companies) or issuers that have been
at any time previously a shell company, such as us. However, Rule 144 also includes an important exception to this prohibition if
the following conditions are met:
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the issuer of the securities that was formerly a shell company has ceased to be a shell company; |
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the issuer of the securities is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act; |
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the issuer of the securities has filed all Exchange Act reports and material required to be filed, as applicable, during the preceding 12 months (or such shorter period that the issuer was required to file such reports and materials), other than Form 8-K reports; and |
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at least one year has elapsed from the time that the issuer filed current Form 10 type information with the SEC reflecting its status as an entity that is not a shell company. |
Upon the closing of the Business Combination,
we ceased to be a shell company.
Exchange Listing
Our common stock is listed on the Nasdaq Capital
Market under the symbol “LMB.”
Transfer Agent and Registrar
The transfer agent for the shares of the Company’s
common stock is Continental Stock Transfer & Trust Company.
DESCRIPTION OF DEPOSITARY SHARES
We may issue depositary receipts representing
interests, which are called depository shares, in shares of our common stock or of a particular series of preferred stock. If we did that,
we would deposit the common or preferred stock which is the subject of depositary shares with a depositary, which would hold that common
or preferred stock for the benefit of the holders of the depositary shares, in accordance with a deposit agreement between the depositary
and us. The holders of depositary shares would be entitled to all the rights and preferences of the common or preferred stock to which
the depositary shares relate, including dividend, voting, conversion, redemption and liquidation rights, to the extent of their interests
in that common or preferred stock.
While the deposit agreement relating to common
stock or a particular series of preferred stock may have provisions applicable solely to common stock or that series of preferred stock,
all deposit agreements relating to common or preferred stock we issue would include the following provisions:
Dividends
and Other Distributions. Each time we pay a cash dividend or make any other type of cash distribution with regard to the common
stock or to the preferred stock of a series, the depositary will distribute to the holder of record of each depositary share relating
to that common stock or to that series of preferred stock, an amount equal to the dividend or other distribution per depositary share
the depositary receives. If there is a distribution of property other than cash, the depositary either will distribute the property to
the holders of depositary shares in proportion to the depositary shares held by each of them, or the depositary will, if we approve, sell
the property and distribute the net proceeds to the holders of the depositary shares in proportion to the depositary shares held by them.
Withdrawal
of Common or Preferred Stock. A holder of depositary shares will be entitled to receive, upon surrender of depositary receipts
representing depositary shares, the number of shares of the applicable common stock or series of preferred stock, and any money or other
property, to which the depositary shares relate.
Redemption
of Depositary Shares. Whenever we redeem shares of a series of preferred stock held by a depositary, the depositary will be
required to redeem, on the same redemption date, depositary shares relating, in total, to the number of shares of that series held by
the depositary which we redeem, subject to the depositary’s receiving the redemption price of those shares. If fewer than all the
depositary shares relating to a series are to be redeemed, the depositary shares to be redeemed will be selected by lot or by another
method we determine to be equitable.
Voting.
Any time we send a notice of meeting or other materials relating to a meeting to the holders of common stock or a series of preferred
stock to which depositary shares relate, we will provide the depositary with sufficient copies of those materials so they can be sent
to all holders of record of the applicable depositary shares, and the depositary will send those materials to the holders of record of
the depositary shares on the record date for the meeting. The depositary will solicit voting instructions from holders of depositary shares
and will vote or not vote the common or preferred stock to which the depositary shares relate in accordance with those instructions.
Liquidating
Distributions. Upon our liquidation, dissolution or winding up, the holder of each depositary share will be entitled to what
the holder of the depositary share would have received if the holder had owned the number of shares of common stock or of the series of
preferred stock which is represented by the depositary share.
Conversion.
If shares of a series of preferred stock are convertible into common stock or other of our securities or property, holders of depositary
shares relating to that series of preferred stock will, if they surrender depositary receipts representing depositary shares with appropriate
instructions to convert them, receive the shares of common stock or other securities or property into which the number of shares of the
series of preferred stock to which the depositary shares relate could at the time be converted.
Amendment
and Termination of a Deposit Agreement. We and the depositary may amend a deposit agreement, except that an amendment which
materially and adversely affects the rights of holders of depositary shares, or would be materially and adversely inconsistent with the
rights granted to the holders of common stock or the series of preferred stock to which they relate, will have to be approved by holders
of at least two-thirds of the applicable depositary shares. No amendment will impair the right of a holder of depositary shares to surrender
the depositary receipts evidencing those depositary shares and receive the common or preferred stock to which they relate, except as required
to comply with law. We may terminate a deposit agreement with the consent of holders of a majority of the depositary shares to which it
relates. Upon termination of a deposit agreement, the depositary will make the shares of common or preferred stock to which the depositary
shares issued under the deposit agreement relate available to the holders of those depositary shares. A deposit agreement will automatically
terminate if:
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all outstanding depositary shares to which it relates have been withdrawn, redeemed or converted, or |
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the depositary has made a final distribution to the holders of the depositary shares issued under the deposit agreement upon our liquidation, dissolution or winding up. |
Miscellaneous.
There will be provisions (i) requiring the depositary to forward to holders of record of depositary shares any reports or communications
from us which the depositary receives with respect to the common or preferred stock to which the depositary shares relate, (ii) regarding
compensation of the depositary, (iii) regarding resignation of the depositary, (iv) limiting our liability and the liability
of the depositary under the deposit agreement (usually failure to act in good faith or acting with gross negligence or willful misconduct)
and (v) indemnifying the depositary against certain possible liabilities.
DESCRIPTION OF DEBT SECURITIES
General
Any debt securities offered by this prospectus
and any accompanying prospectus supplement will be issued under an indenture to be entered into between us and the trustee identified
in the applicable prospectus supplement. The terms of the debt securities will include those stated in the indenture and those made part
of the indenture by reference to the Trust Indenture Act of 1939, as in effect on the date of the indenture. We have filed a copy of the
form of indenture as an exhibit to the registration statement in which this prospectus is included. The indenture will be subject to and
governed by the terms of the Trust Indenture Act of 1939, as amended. Unless otherwise specified in the applicable prospectus supplement,
the debt securities will represent our direct, unsecured obligations and will rank equally with all of our other unsecured indebtedness.
The debt securities, if and when issued, will
be direct, unsecured obligations of our company and may be either senior debt securities or subordinated debt securities. We may issue
debt securities in one or more issuances or series. An indenture, or a supplemental indenture, will set forth specific terms of each issue
or series of debt securities. There will be prospectus supplements relating to particular issues or series of debt securities. Each prospectus
supplement will describe:
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the title of the debt securities and whether the debt securities are senior or subordinated debt securities; |
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the total principal amount of the debt securities we are offering by that prospectus supplement; |
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the date or dates on which principal of the debt securities will be payable and the amount of principal which will be payable; |
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the rate or rates (which may be fixed or variable) at which the debt securities will bear interest, if any, or contingent interest, if any, as well as the dates from which interest will accrue, the dates on which interest will be payable, the persons to whom interest will be payable, if other than the registered holders on the record date, and the record date for the interest payable on any payment date; |
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the currency in which principal and interest, and any premium, will be payable; |
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the place or places where principal, premium, if any, and interest, if any, on the debt securities will be payable and where debt securities which are in registered form can be presented for registration of transfer or exchange; |
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any provisions regarding our right to prepay debt securities or of holders to require us to prepay debt securities; |
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the right, if any, of holders of the debt securities to convert them into common stock or other securities, including any contingent conversion provisions; |
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any provisions requiring or permitting us to make payments to a sinking fund which will be used to redeem debt securities or a purchase fund which will be used to purchase debt securities; |
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the percentage of the principal amount of the debt securities which is payable if maturity of the debt securities is accelerated because of a default; |
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any special or modified events of default or covenants with respect to the debt securities; and |
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any other material terms of the debt securities. |
We may issue discount debt securities that provide
for an amount less than the stated principal amount to be due and payable upon acceleration of the maturity of such debt securities in
accordance with the terms of the indenture. We may also issue debt securities in bearer form, with or without coupons. If we issue discount
debt securities or debt securities in bearer form, we will describe material U.S. federal income tax considerations and other material
special considerations which apply to these debt securities in the applicable prospectus supplement.
We may issue debt securities denominated in or
payable in a foreign currency or currencies or a foreign currency unit or units. If we do, we will describe the restrictions, elections,
and general tax considerations relating to the debt securities and the foreign currency or currencies or foreign currency unit or units
in the applicable prospectus supplement.
Debt securities offered under this prospectus
and any prospectus supplement will be subordinated in right of payment to certain of our outstanding senior indebtedness. In addition,
we will seek the consent of the holders of any such senior indebtedness prior to issuing any debt securities under this prospectus to
the extent required by the agreements evidencing such senior indebtedness.
Registrar and Paying Agent
The debt securities may be presented for registration
of transfer or for exchange at the corporate trust office of the security registrar or at any other office or agency that we maintain
for those purposes. In addition, the debt securities may be presented for payment of principal, interest and any premium at the office
of the paying agent or at any office or agency that we maintain for those purposes.
Conversion or Exchange Rights
Debt securities may be convertible into or exchangeable
for shares of our common stock. The terms and conditions of conversion or exchange will be stated in the applicable prospectus supplement.
The terms will include, among others, the following:
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the conversion or exchange price; |
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the conversion or exchange period; |
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provisions regarding the convertibility or exchangeability of the debt securities, including who may convert or exchange; |
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events requiring adjustment to the conversion or exchange price; |
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provisions affecting conversion or exchange in the event of our redemption of the debt securities; and |
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any anti-dilution provisions, if applicable. |
Registered Global Securities
If we decide to issue debt securities in the form
of one or more global securities, then we will register the global securities in the name of the depositary for the global securities
or the nominee of the depositary, and the global securities will be delivered by the trustee to the depositary for credit to the accounts
of the holders of beneficial interests in the debt securities.
The prospectus supplement will describe the specific
terms of the depositary arrangement for debt securities of a series that are issued in global form. None of us, the trustee, any payment
agent or the security registrar will have any responsibility or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a global debt security or for maintaining, supervising or reviewing any records relating
to these beneficial ownership interests.
No Protection in the Event of a Change of Control
The indenture does not have any covenants or other
provisions providing for a put or increased interest or otherwise that would afford holders of our debt securities additional protection
in the event of a recapitalization transaction, a change of control or a highly leveraged transaction. If we offer any covenants or provisions
of this type with respect to any debt securities covered by this prospectus, we will describe them in the applicable prospectus supplement.
Covenants
Unless otherwise indicated in this prospectus
or the applicable prospectus supplement, our debt securities will not have the benefit of any covenants that limit or restrict our business
or operations, the pledging of our assets or the incurrence by us of indebtedness. We will describe in the applicable prospectus supplement
any material covenants in respect of a series of debt securities.
Merger, Consolidation or Sale of Asset
The form of indenture provides that we will not
consolidate with or merge into any other person or convey, transfer, sell or lease our properties and assets substantially as an entirety
to any person, unless:
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we are the surviving person of such merger or consolidation, or if we are not the surviving person, the person formed by the consolidation or into or with which we are merged or the person to which our properties and assets are conveyed, transferred, sold or leased, is a corporation organized and existing under the laws of the U.S., any state or the District of Columbia or a corporation or comparable legal entity organized under the laws of a foreign jurisdiction and has expressly assumed all of our obligations, including the payment of the principal of and, premium, if any, and interest on the debt securities and the performance of the other covenants under the indenture; and |
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immediately before and immediately after giving effect to the transaction on a pro forma basis, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, has occurred and is continuing under the indenture. |
Events of Default and Remedies
Unless otherwise specified in the applicable prospectus
supplement, the following events will be events of default under the indenture with respect to debt securities of any series:
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we fail to pay any principal or premium, if any, when it becomes due; |
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we fail to pay any interest within 30 days after it becomes due; |
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we fail to observe or perform any other covenant in the debt securities or the indenture for 60 days after written notice specifying the failure from the trustee or the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of that series; and |
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certain events involving bankruptcy, insolvency or reorganization of us or any of our significant subsidiaries. |
The trustee may withhold notice to the holders
of the debt securities of any series of any default, except in payment of principal of or premium, if any, or interest on the debt securities
of a series, if the trustee considers it to be in the best interest of the holders of the debt securities of that series to do so.
If an event of default (other than an event of
default resulting from certain events of bankruptcy, insolvency or reorganization) occurs, and is continuing, then the trustee or the
holders of not less than 25% in aggregate principal amount of the outstanding debt securities of any series may accelerate the maturity
of the debt securities. If this happens, the entire principal amount, plus the premium, if any, of all the outstanding debt securities
of the affected series plus accrued interest to the date of acceleration will be immediately due and payable. At any time after the acceleration,
but before a judgment or decree based on such acceleration is obtained by the trustee, the holders of a majority in aggregate principal
amount of outstanding debt securities of such series may rescind and annul such acceleration if:
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all events of default (other than nonpayment of accelerated principal, premium or interest) have been cured or waived; |
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all lawful interest on overdue interest and overdue principal has been paid; and |
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the rescission would not conflict with any judgment or decree. |
In addition, if the acceleration occurs at any
time when we have outstanding indebtedness that is senior to the debt securities, the payment of the principal amount of outstanding debt
securities may be subordinated in right of payment to the prior payment of any amounts due under the senior indebtedness, in which case
the holders of debt securities will be entitled to payment under the terms prescribed in the instruments evidencing the senior indebtedness
and the indenture.
If an event of default resulting from certain
events of bankruptcy, insolvency or reorganization occurs, the principal, premium and interest amount with respect to all of the debt
securities of any series will be due and payable immediately without any declaration or other act on the part of the trustee or the holders
of the debt securities of that series.
The holders of a majority in principal amount
of the outstanding debt securities of a series will have the right to waive any existing default or compliance with any provision of the
indenture or the debt securities of that series and to direct the time, method and place of conducting any proceeding for any remedy available
to the trustee, subject to certain limitations specified in the indenture.
No holder of any debt security of a series will
have any right to institute any proceeding with respect to the indenture or for any remedy under the indenture, unless:
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the holder gives to the trustee written notice of a continuing event of default; |
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the affected series make a written request and offer reasonable indemnity to the trustee to institute a proceeding as trustee; |
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the trustee fails to institute a proceeding within 60 days after such request; and |
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the holders of a majority in aggregate principal amount of the outstanding debt securities of the affected series do not give the trustee a direction inconsistent with such request during such 60-day period. |
These limitations do not, however, apply to a
suit instituted for payment on debt securities of any series on or after the due dates expressed in the debt securities.
We will periodically deliver certificates to the
trustee regarding our compliance with our obligations under the indenture.
Modification of an Indenture
From time to time, we and the trustee may, without
the consent of holders of the debt securities of one or more series, amend the indenture or the debt securities of one or more series,
or supplement the indenture, for certain specified purposes, including:
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to provide that the surviving entity following a change of control permitted under the indenture will assume all of our obligations under the indenture and debt securities; |
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to provide for certificated debt securities in addition to uncertificated debt securities; |
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to comply with any requirements of the SEC under the Trust Indenture Act of 1939; |
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to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture; |
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to cure any ambiguity, defect or inconsistency, or make any other change that does not materially and adversely affect the rights of any holder; and |
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to appoint a successor trustee under the indenture with respect to one or more series. |
From time to time we and the trustee may, with
the consent of holders of at least a majority in principal amount of an outstanding series of debt securities, amend or supplement the
indenture or the debt securities series, or waive compliance in a particular instance by us with any provision of the indenture or the
debt securities. We may not, however, without the consent of each holder affected by such action, modify or supplement the indenture or
the debt securities or waive compliance with any provision of the indenture or the debt securities in order to:
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reduce the amount of debt securities whose holders must consent to an amendment, supplement, or waiver to the indenture or such debt security; |
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reduce the rate of or change the time for payment of interest or reduce the amount of or postpone the date for payment of sinking fund or analogous obligations; |
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reduce the principal of or change the stated maturity of the debt securities; |
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make any debt security payable in money other than that stated in the debt security; |
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change the amount or time of any payment required or reduce the premium payable upon any redemption, or change the time before which no such redemption may be made; |
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waive a default in the payment of the principal of, premium, if any, or interest on the debt securities or a redemption payment; |
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waive a redemption payment with respect to any debt securities or change any provision with respect to redemption of debt securities; or |
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take any other action otherwise prohibited by the indenture to be taken without the consent of each holder affected by the action. |
Defeasance of Debt Securities and Certain Covenants
in Certain Circumstances
The indenture permits us, at any time, to elect
to discharge our obligations with respect to one or more series of debt securities by following certain procedures described in the indenture.
These procedures will allow us either:
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to defease and be discharged from any and all of our obligations with respect to any debt securities except for the following obligations (which discharge is referred to as “legal defeasance”); |
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to register the transfer or exchange of such debt securities; |
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to replace temporary or mutilated, destroyed, lost or stolen debt securities; |
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to compensate and indemnify the trustee; |
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to maintain an office or agency in respect of the debt securities and to hold monies for payment in trust; or |
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to be released from our obligations with respect to the debt securities under certain covenants contained in the indenture, as well as any additional covenants which may be contained in the applicable supplemental indenture (which release is referred to as “covenant defeasance”). |
In order to exercise either defeasance option,
we must irrevocably deposit with the trustee or other qualifying trustee, in trust for that purpose:
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money; |
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U.S. Government Obligations (as described below) or Foreign Government Obligations (as described below) that through the scheduled payment of principal and interest in accordance with their terms will provide money; or |
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a combination of money and/or U.S. Government Obligations and/or Foreign Government Obligations sufficient in the written opinion of a nationally-recognized firm of independent accountants to provide money; |
that, in each case specified above, provides a
sufficient amount to pay the principal of, premium, if any, and interest, if any, on the debt securities of the series, on the scheduled
due dates or on a selected date of redemption in accordance with the terms of the indenture.
In addition, defeasance may be effected only if,
among other things:
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in the case of either legal or covenant defeasance, we deliver to the trustee an opinion of counsel, as specified in the indenture, stating that as a result of the defeasance neither the trust nor the trustee will be required to register as an investment company under the Investment Company Act of 1940; |
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in the case of legal defeasance, we deliver to the trustee an opinion of counsel stating that we have received from, or there has been published by, the Internal Revenue Service a ruling to the effect that, or there has been a change in any applicable federal income tax law with the effect that (and the opinion shall confirm that), the holders of outstanding debt securities will not recognize income, gain or loss for U.S. federal income tax purposes solely as a result of such legal defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner, including as a result of prepayment, and at the same times as would have been the case if legal defeasance had not occurred; |
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in the case of covenant defeasance, we deliver to the trustee an opinion of counsel to the effect that the holders of the outstanding debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if covenant defeasance had not occurred; and |
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certain other conditions described in the indenture are satisfied. |
If we fail to comply with our remaining obligations
under the indenture and applicable supplemental indenture after a covenant defeasance of the indenture and applicable supplemental indenture,
and the debt securities are declared due and payable because of the occurrence of any undefeased event of default, the amount of money
or U.S. Government Obligations or Foreign Government Obligations on deposit with the trustee could be insufficient to pay amounts due
under the debt securities of the affected series at the time of acceleration. We will, however, remain liable in respect of these payments.
The term “U.S. Government Obligations”
as used in the above discussion means securities that are direct obligations of or non-callable obligations guaranteed by the United States
of America for the payment of which obligation or guarantee the full faith and credit of the United States of America is pledged.
The term “Foreign Government Obligations”
as used in the above discussion means, with respect to debt securities of any series that are denominated in a currency other than U.S.
dollars, (1) direct obligations of the government that issued or caused to be issued such currency for the payment of which obligations
its full faith and credit is pledged or (2) obligations of a person controlled or supervised by or acting as an agent or instrumentality
of such government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by that government,
which in either case under clauses (1) or (2), are not callable or redeemable at the option of the issuer.
Regarding the Trustee
We will identify the trustee with respect to any
series of debt securities in the prospectus supplement relating to the applicable debt securities. You should note that if the trustee
becomes a creditor of ours, the indenture and the Trust Indenture Act of 1939, as amended, limit the rights of the trustee to obtain payment
of claims in certain cases, or to realize on certain property received in respect of any such claim, as security or otherwise. The trustee
and its affiliates may engage in, and will be permitted to continue to engage in, other transactions with us and our affiliates. If, however,
the trustee acquires any “conflicting interest” within the meaning of the Trust Indenture Act of 1939, it must eliminate such
conflict or resign.
The holders of a majority in principal amount
of the then outstanding debt securities of any series may direct the time, method and place of conducting any proceeding for exercising
any remedy available to the trustee. If an event of default occurs and is continuing, the trustee, in the exercise of its rights and powers,
must use the degree of care and skill of a prudent person in the conduct of his or her own affairs. Subject to that provision, the trustee
will be under no obligation to exercise any of its rights or powers under the indenture at the request of any of the holders of the debt
securities, unless they have offered to the trustee reasonable indemnity or security.
No Individual Liability of Incorporators, Stockholders,
Officers or Directors
Each indenture provides that no incorporator and
no past, present or future stockholder, officer or director of our company or any successor corporation in those capacities will have
any individual liability for any of our obligations, covenants or agreements under the debt securities or such indenture.
Governing Law
The indentures and the debt securities will be
governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase common stock,
preferred stock, debt securities or units. Each issue of warrants will be the subject of a warrant agreement which will contain the terms
of the warrants. In the event that we issue warrants, we will distribute a prospectus supplement with regard to each issue of warrants.
Each prospectus supplement will describe, as to the warrants to which it relates:
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the securities which may be purchased by exercising the warrants (which may be common stock, preferred stock, depositary shares, debt securities or units consisting of two or more of those types of securities); |
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the exercise price of the warrants (which may be wholly or partly payable in cash or wholly or partly payable with other types of consideration); |
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the period during which the warrants may be exercised; |
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any provision adjusting the securities which may be purchased on exercise of the warrants and the exercise price of the warrants in order to prevent dilution or otherwise; |
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the place or places where warrants can be presented for exercise or for registration of transfer or exchange; and |
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any other material terms of the warrants. |
DESCRIPTION OF UNITS
We may issue securities in units, each consisting
of two or more types of securities. For example, we might issue units consisting of a combination of debt securities and warrants to purchase
common stock. If we issue units, the prospectus supplement relating to the units will contain the information described above with regard
to each of the securities that is a component of the units. In addition, each prospectus supplement relating to units will:
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state how long, if at all, the securities that are components of the units must be traded in units, and when they can be traded separately; |
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state whether we will apply to have the units traded on a securities exchange or securities quotation system; and |
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describe how, for U.S. federal income tax purposes, the purchase price paid for the units is to be allocated among the component securities. |
PLAN OF DISTRIBUTION
We or the selling securityholders may sell the
securities offered through this prospectus and applicable prospectus supplements: (i) to or through underwriters or dealers, (ii) directly
to purchasers, including our affiliates, (iii) through agents, (iv) through a combination of any these methods or (v) any
other method permitted by applicable law. The securities may be distributed at a fixed price or prices, which may be changed, market prices
prevailing at the time of sale, prices related to the prevailing market prices, or negotiated prices. Any applicable prospectus supplement
will include the following information:
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the terms of the offering; |
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the names of any underwriters or agents; |
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the name or names of any managing underwriter or underwriters; |
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the purchase price of the securities; |
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any over-allotment options under which underwriters may purchase additional securities; |
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the net proceeds from the sale of the securities; |
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any delayed delivery arrangements; |
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any underwriting discounts, commissions and other items constituting underwriters’ compensation; |
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any initial public offering price; |
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any discounts or concessions allowed or reallowed or paid to dealers; |
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any commissions paid to agents; and |
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any securities exchange or market on which the securities may be listed. |
Sale Through Underwriters or Dealers
Only underwriters named in a prospectus supplement
are underwriters of the securities offered by such prospectus supplement.
If underwriters are used
in the sale, the underwriters will acquire the securities for their own account, including through underwriting, purchase, security lending
or repurchase agreements with us. The underwriters may resell the securities from time to time in one or more transactions, including
negotiated transactions. Underwriters may sell the securities in order to facilitate transactions in any of our other securities (described
in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters may offer securities to
the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting
as underwriters. Unless otherwise indicated in a prospectus supplement, the obligations of the underwriters to purchase the securities
will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase
any of them. The underwriters may change from time to time any public offering price and any discounts or concessions allowed or reallowed
or paid to dealers.
If dealers are used in
the sale of securities offered through this prospectus, we will sell the securities to them as principals. The dealers may then resell
those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus supplement will include
the names of the dealers and the terms of the transaction.
Direct Sales and Sales
Through Agents
We or the selling securityholders
may sell the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such securities
may also be sold through agents designated from time to time. Any applicable prospectus supplement will name any agent involved in the
offer or sale of the offered securities and will describe any commissions payable to the agent. Unless otherwise indicated in the prospectus
supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We or the selling securityholders
may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities
Act with respect to any sale of those securities. The terms of any such sales will be described in a prospectus supplement.
Delayed Delivery Contracts
If an applicable prospectus
supplement indicates, we or the selling securityholders may authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase securities at the offering price under delayed delivery contracts. These contracts would provide for payment
and delivery on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement.
The applicable prospectus supplement will describe the commission payable for solicitation of those contracts.
Market Making, Stabilization and Other
Transactions
Unless otherwise specified
in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market, other
than our common stock, which are listed on the Nasdaq Capital Market. We may elect to list any other offered securities on an exchange
or in the over-the-counter market. Any underwriters that we use in the sale of offered securities may make a market in such securities,
but may discontinue such market making at any time without notice. Therefore, we cannot assure you that the securities will have a liquid
trading market.
Certain persons participating
in an offering may engage in overallotment, stabilizing transactions, syndicate covering transactions and penalty bids in accordance with
rules and regulations under the Exchange Act. Overallotment involves the sale in excess of the offering size, which create a short
position. Stabilizing transactions involve bids to purchase the underlying security in the open market for the purpose of pegging, fixing
or maintaining the price of the securities. Syndicate covering transactions involve purchases of the securities in the open market after
the distribution has been completed in order to cover syndicate short positions.
LEGAL MATTERS
Cozen O’Connor, Pittsburgh, Pennsylvania,
or other counsel selected by the Company with regard to a particular offering, who will be named in the prospectus supplement relating
to that offering, will pass upon the validity of any securities we offer by this prospectus. If the validity of any securities is also
passed upon by counsel for the underwriters of an offering of those securities, that counsel will be named in the prospectus supplement
relating to that offering.
EXPERTS
The consolidated financial statements incorporated
in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2023 have been so incorporated
in reliance on the report of Crowe LLP, independent registered accounting firm, given on the authority of said firm as experts in accounting
and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information reporting requirements
of the Exchange Act and, in accordance with these requirements, we file annual, quarterly and current reports, proxy statements, information
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. In addition, we provide free access to these materials through our website, www.limbachinc.com, as soon as reasonably
practicable after they are filed with or furnished to the SEC.
We have filed with the SEC a registration statement
on Form S-3 relating to the securities covered by this prospectus and any prospectus supplement. This prospectus is a part of the
registration statement and does not contain all the information in the registration statement. Whenever a reference is made in this prospectus
or any prospectus supplement to a contract or other document, the reference is only a summary and you should refer to the exhibits that
are a part of the registration statement for a copy of the contract or other document. You may review a copy of the registration statement
through the SEC’s website.
INCORPORATION BY REFERENCE
We disclose important information to you by referring
you to documents that we have previously filed with the SEC or documents that we will file with the SEC in the future. The information
incorporated by reference is considered to be an important part of this prospectus. We are incorporating by reference in this prospectus
the following documents which we have previously filed with the SEC:
| |
(2) |
Quarterly
Reports on Form 10-Q for the quarters ended March 31,
2024, filed on May 8, 2024; June 30,
2024, filed on August 6, 2024, and September 30, 2024, filed on November 5, 2024; |
| |
(3) |
Current Reports on Form 8-K filed on March 13, 2024 and June 14, 2024, (other than any portions that were furnished pursuant to Item 2.02 or 7.01 of Form 8-K or other applicable SEC rules); and |
Whenever after the date of filing the registration
statement of which this prospectus is a part, and until all of the securities to which this prospectus relates have been sold or the offering
is otherwise terminated, we file reports or documents under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, those reports
and documents will be deemed to be part of this prospectus from the time they are filed. Any statements made in this prospectus or in
a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in this prospectus or in any subsequently filed document that is also incorporated
or deemed to be incorporated by reference in this prospectus modifies or supersedes the statement. Nothing in this prospectus will be
deemed to incorporate information furnished by us on Form 8-K that under the rules of the SEC, is not deemed “filed”
for purposes of the Exchange Act.
You may request, without charge, a copy of any
incorporated document (excluding exhibits, unless we have specifically incorporated an exhibit in an incorporated document) by writing
or telephoning us at our principal executive offices at the following address:
Limbach Holdings, Inc.
Attention: Investor Relations
797 Commonwealth Drive
Warrendale, Pennsylvania 15086
(412) 359-2100
Limbach Holdings, Inc.
Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Units
Warrants
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. |
Other Expenses of Issuance and Distribution |
The following table sets forth the various costs
and expenses to be paid by us in connection with the sale and distribution of the securities being registered, other than underwriting
discounts and commissions. All amounts shown are estimates except for the registration fee required by the SEC.
| SEC registration fee | |
| (1 | ) |
| Accounting fees and expenses | |
| (2 | ) |
| FINRA filing fees | |
| (2 | ) |
| Legal fees and expenses | |
| (2 | ) |
| Fees and expenses of the trustee | |
| (2 | ) |
| Transfer agent fees and expenses | |
| (2 | ) |
| Depositary fees and expenses | |
| (2 | ) |
| Warrant agent fees and expenses | |
| (2 | ) |
| Printing expenses | |
| (2 | ) |
| Miscellaneous | |
| (2 | ) |
| Total | |
| (2 | ) |
| |
(1) |
In accordance with Rules 456(b) and 457(r) of the Securities Act, the registrant is deferring payment of all of the registration fee with respect to the securities that may be offered by the registrant pursuant to this registration statement. |
| |
|
|
| |
(2) |
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. The additional estimated amounts, if any, of fees and expenses to be incurred in connection with any offering of the securities pursuant to this registration statement will be determined from time to time and reflected in the applicable prospectus supplement. |
| Item 15. |
Indemnification of Directors and Officers |
Section 145 of the Delaware General Corporation
Law provides, in summary, that directors and officers of Delaware corporations are entitled, under certain circumstances, to be indemnified
against all expenses and liabilities (including attorneys’ fees) incurred by them as a result of suits brought against them in their
capacity as a director or officer, if they acted in good faith and in a manner they reasonably believed to be in or not opposed to our
best interests, and, with respect to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful;
provided that no indemnification may be made against expenses in respect of any claim, issue or matter as to which they shall have been
adjudged to be liable to us, unless and only to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the case, they are fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper. Any such indemnification may be made by us only as authorized
in each specific case upon a determination by the stockholders, disinterested directors or independent legal counsel that indemnification
is proper because the indemnitee has met the applicable standard of conduct.
Our Certificate of Incorporation provides that
our directors and officers will be indemnified by us to the fullest extent authorized by Delaware General Corporation Law as it now exists
or may in the future be amended.
We may in the future enter into agreements with
our directors to provide contractual indemnification in addition to the indemnification provided in our amended and restated certificate
of incorporation. Our bylaws also permit us to secure insurance on behalf of any officer, director, employee or agent for any liability
arising out of his or her actions, regardless of whether the bylaws would permit indemnification. We have purchased a policy of directors’
and officers’ liability insurance that insures our directors and officers against the cost of defense, settlement or payment of
a judgment in some circumstances and insures us against our obligations to indemnify the directors and officers.
These provisions may discourage stockholders from
bringing a lawsuit against our directors for breach of their fiduciary duty. These provisions also may have the effect of reducing the
likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit
us and our stockholders. Furthermore, a stockholder’s investment may be adversely affected to the extent we pay the costs of settlement
and damage awards against directors and officers pursuant to these indemnification provisions. We believe that these provisions, the insurance
and the indemnity agreements are necessary to attract and retain talented and experienced directors and officers.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or
otherwise, we have 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.
| Item 16. |
|
Exhibits |
| |
|
|
| **1.1 |
|
Form of Underwriting Agreement for each of the securities registered hereby. |
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|
|
| +2.1 |
|
Agreement and Plan of Merger, dated March 23, 2016, by and among the Company, Limbach Holdings LLC and FdG HVAC LLC (“Merger Agreement”) (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K (File No. 001-36541), filed with the U.S. Securities and Exchange Commission on March 29, 2016). |
| |
|
|
| +2.2 |
|
Amendment No. 1 to Agreement and Plan of Merger, dated July 11, 2016, by and among the Company, Limbach Holdings LLC and FdG HVAC LLC (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K (File No. 001-36541), filed with the U.S. Securities and Exchange Commission on July 13, 2016). |
| |
|
|
| +2.3 |
|
Amendment No. 2 to Agreement and Plan of Merger, dated July 18, 2016, by and among the Company, Limbach Holdings LLC and FdG HVAC LLC (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K (File No. 001-36541), filed with the U.S. Securities and Exchange Commission on July 18, 2016). |
| |
|
|
| 4.1 |
|
Conformed Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-36541) filed with the U.S. Securities and Exchange Commission on June 23, 2023). |
| |
|
|
| 4.2 |
|
Certificate of Designation of Class A Preferred Stock (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K (File No. 001-36541) filed with the U.S. Securities and Exchange Commission on July 26, 2016). |
| |
|
|
| 4.3 |
|
Certificate of Correction to Certificate of Designation of Class A Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-36541) filed with the U.S. Securities and Exchange Commission on August 24, 2016). |
| |
|
|
| 4.4 |
|
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 001-36541) filed with the U.S. Securities and Exchange Commission on April 17, 2023). |
| |
|
|
| 4.5 |
|
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.2 to Amendment No. 2 to the Company’s Registration Statement on Form S-1 (File No. 333-195695), filed with the U.S. Securities and Exchange Commission on June 27, 2014). |
| |
|
|
| 4.6 |
|
Description of Securities (incorporated by reference to Exhibit 4.7 to the Company's Current Report on Form 10-K (File No. 001-36541) filed with the U.S. Securities and Exchange Commission on March 25, 2021). |
| |
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 of 1933; |
| |
ii. |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
| |
iii. |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
| |
|
|
provided
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
| |
2. |
That, for the purpose of determining any liability under the Securities Act of 1933, 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: |
| |
i. |
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| |
ii. |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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 effective date, 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 effective date.
| |
5. |
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 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; |
| |
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 of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue. |
| |
d. |
If and when applicable, the Registrant hereby further undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Tampa Bay, State of Florida, on November 5, 2024.
| |
LIMBACH HOLDINGS, INC. |
| |
|
|
| |
By: |
/s/ Michael M. McCann |
| |
|
Michael M. McCann |
| |
|
President, Chief Executive Officer and Director |
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below, constitutes and appoints Michael M. McCann and Jayme L. Brooks and each of them, as his or her true
and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to do any and all acts and things and execute,
in the name of the undersigned, any and all instruments which said attorney-in-fact and agent may deem necessary or advisable in order
to enable the Company to comply with the Securities Act and any requirements of the SEC in respect thereof, in connection with the filing
with the SEC of this Registration Statement on Form S-3 under the Securities Act, including specifically but without limitation,
power and authority to sign the name of the undersigned to such Registration Statement, and any amendments to such Registration Statement
(including post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith, with
the SEC, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with applicable
state securities laws, and to file the same, together with other documents in connection therewith with the appropriate state securities
authorities, granting unto said attorney-in-fact and agent, full power and authority to do and to perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Michael M. McCann |
|
President and Chief Executive Officer and Director |
|
November 5, 2024 |
| Michael M. McCann |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Jayme L. Brooks |
|
Executive Vice President and Chief Financial Officer |
|
November 5, 2024 |
| Jayme L. Brooks |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Joshua S. Horowitz |
|
Director and Chairman |
|
November 5, 2024 |
| Joshua S. Horowitz |
|
|
|
|
| |
|
|
|
|
| /s/ Gordon G. Pratt |
|
Director |
|
November 5, 2024 |
| Gordon G. Pratt |
|
|
|
|
| |
|
|
|
|
| /s/ Michael F. McNally |
|
Director |
|
November 5, 2024 |
| Michael F. McNally |
|
|
|
|
| |
|
|
|
|
| /s/ Laurel J. Krzeminski |
|
Director |
|
November 5, 2024 |
| Laurel J. Krzeminski |
|
|
|
|
| |
|
|
|
|
| /s/ Linda G. Alvarado |
|
Director |
|
November 5, 2024 |
| Linda G. Alvarado |
|
|
|
|
| |
|
|
|
|
| /s/ David R. Gaboury |
|
Director |
|
November 5, 2024 |
| David R. Gaboury |
|
|
|
|
Exhibit 5.1
November 5, 2024
Board of Directors
Limbach Holdings, Inc.
797 Commonwealth Drive
Warrendale, PA 15086
| |
Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as special counsel
to Limbach Holdings, Inc., a Delaware corporation (the “Company”), in connection with its filing on the date hereof
with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-3 (as amended,
the “Registration Statement”), including a base prospectus (the “Base Prospectus”), which provides
that it will be supplemented by one or more prospectus supplements (each such prospectus supplement, together with the Base Prospectus,
a “Prospectus”), under the Securities Act of 1933, as amended (the “Act”), relating to the registration
for issue and sale by the Company of an indeterminate number of (i) shares of the Company’s common stock, $0.0001 par value per
share (“Common Stock”), (ii) shares of one or more series of the Company’s preferred stock, $0.0001 par
value per share (“Preferred Stock”), (iii) one or more series of the Company’s debt securities (collectively,
“Debt Securities”) to be issued under an indenture to be entered into between the Company, as issuer, and a trustee
chosen by the Company and qualified to act as such under the Trust Indenture Act of 1939, as amended, as trustee (a form of which is incorporated
by reference as Exhibit 4.8 to the Registration Statement) and one or more board resolutions, supplements thereto or officer’s certificates
thereunder (such indenture, together with the applicable board resolution, supplement or officer’s certificate pertaining to the
applicable series of Debt Securities, the “Applicable Indenture”), (iv) depositary shares (“Depositary Shares”),
(v) warrants (“Warrants”) and (vi) units (“Units”). The Common Stock, Preferred Stock, Debt Securities,
Depositary Shares, Warrants and Units, plus any additional Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants
and Units that may be registered pursuant to any subsequent registration statement that the Company may hereafter file with the Commission
pursuant to Rule 462(b) under the Act in connection with the offering by the Company contemplated by the Registration Statement, are
referred to herein collectively as the “Securities.”
This opinion is being furnished
in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter
pertaining to the contents of the Registration Statement or related applicable Prospectus, other than as expressly stated herein with
respect to the issue of the Securities.
In
rendering the opinions set forth below, we examined and relied upon such certificates, corporate records, agreements, instruments and
other documents, and examined such matters of law, that we considered necessary or appropriate as a basis for the opinions. In rendering
the opinions set forth below, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction,
of (a) the Second Amended and Restated Certificate of Incorporation of the Company, as in effect on the date hereof (the “Certificate
of Incorporation”), (b) the Second Amended and Restated Bylaws of the Company, as in effect on the date hereof (the “Bylaws”
and, together with the Certificate of Incorporation, the “Organizational Documents”), (c) the Registration Statement,
(d) the form of Applicable Indenture, (e) resolutions of the Board of Directors of the Company (the “Board”)
relating to, among other matters, the filing of the Registration Statement, and (f) such other documents as we have deemed necessary
or appropriate as a basis for the opinions set forth below. In our examination, we have assumed the legal capacity of all natural persons,
the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies, the authenticity of the originals of such latter documents, that
all parties to such documents had the power, corporate or other, to enter into and perform all obligations thereunder and all such documents
have been duly authorized by all requisite action, corporate or other, and duly executed and delivered by all parties thereto. As to any
facts material to the opinions expressed herein that we did not independently establish or verify, we have relied upon oral or written
statements and representations of officers and other representatives of the Company and others.
With your consent, we have
relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently
verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware, and with respect to the
opinions set forth in paragraphs 3 through 6 below, the internal laws of the State of New York, and we express no opinion with respect
to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of Delaware, any other laws,
or as to any matters of municipal law or the laws of any local agencies within any state.
Subject to the foregoing and
the other matters set forth herein, it is our opinion that, as of the date hereof:
| 1. | When an issuance of Common Stock has been duly authorized by all necessary corporate action of the Company,
upon issuance, delivery and payment therefor in an amount not less than the par value thereof in the manner contemplated by the applicable
Prospectus and by such corporate action, and in total amounts and numbers of shares that do not exceed the respective total amounts and
numbers of shares (a) available under the certificate of incorporation, and (b) authorized by the board of directors in connection with
the offering contemplated by the applicable Prospectus, such shares of Common Stock will be validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated
shares provided in the General Corporation Law of the State of Delaware. |
| 2. | When a series of Preferred Stock has been duly established in accordance with the terms of the Company’s
Certificate of Incorporation and authorized by all necessary corporate action of the Company, upon issuance, delivery and payment therefor
in an amount not less than the par value thereof in the manner contemplated by the applicable Prospectus and by such corporate action,
and in total amounts and numbers of shares that do not exceed the respective total amounts and numbers of shares (a) available under the
certificate of incorporation, and (b) authorized by the board of directors in connection with the offering contemplated by the applicable
Prospectus, such shares of such series of Preferred Stock will be validly issued, fully paid and nonassessable. In rendering the foregoing
opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided
in the General Corporation Law of the State of Delaware. |
| 3. | When the Applicable Indenture has been duly authorized, executed and delivered by all necessary corporate
action of the Company, and when the specific terms of a particular series of Debt Securities have been duly established in accordance
with the terms of the Applicable Indenture and authorized by all necessary corporate action of the Company, and such Debt Securities have
been duly executed, authenticated, issued and delivered against payment therefor in accordance with the terms of the Applicable Indenture
and in the manner contemplated by the applicable Prospectus and by such corporate action, such Debt Securities will be the legally valid
and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
| 4. | When the applicable deposit agreement has been duly authorized, executed and delivered by all necessary
corporate action of the Company, and when the specific terms of a particular issuance of Depositary Shares have been duly established
in accordance with the terms of the applicable deposit agreement and authorized by all necessary corporate action of the Company, and
such Depositary Shares have been duly executed, authenticated, issued and delivered against payment therefor in accordance with the terms
of the applicable deposit agreement and in the manner contemplated by the applicable Prospectus and by such corporate action (assuming
the underlying securities have been validly issued and deposited with the depositary), such Depositary Shares will be the legally valid
and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
| 5. | When the applicable warrant agreement has been duly authorized, executed and delivered by all necessary
corporate action of the Company, and when the specific terms of a particular issuance of Warrants have been duly established in accordance
with the terms of the applicable warrant agreement and authorized by all necessary corporate action of the Company, and such Warrants
have been duly executed, authenticated, issued and delivered against payment therefor in accordance with the terms of the applicable warrant
agreement and in the manner contemplated by the applicable Prospectus and by such corporate action (assuming the securities issuable upon
exercise of such Warrants have been duly authorized and reserved for issuance by all necessary corporate action), such Warrants will be
the legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
| 6. | When the applicable unit agreement has been duly authorized, executed and delivered by all necessary corporate
action of the Company, and when the specific terms of a particular issuance of Units have been duly authorized in accordance with the
terms of the applicable unit agreement and authorized by all necessary corporate action of the Company, and such Units have been duly
executed, authenticated, issued and delivered against payment therefor in accordance with the terms of the applicable unit agreement and
in the manner contemplated by the applicable Prospectus and by such corporate action (assuming the securities issuable upon exercise of
such Units have been duly authorized and reserved for issuance by all necessary corporate action), such Units will be the legally valid
and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
Our opinions set forth in
paragraphs 3 through 6 are subject to: (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium
or other similar laws relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of equity,
whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief),
concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought;
(iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution
to a party with respect to a liability where such indemnification or contribution is contrary to public policy; and (iv) we express no
opinion as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other
economic remedies to the extent such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing law,
jurisdiction, venue, arbitration, remedies, or judicial relief, (c) waivers of rights or defenses, (d) any provision requiring the payment
of attorneys’ fees, where such payment is contrary to law or public policy, (e) any provision permitting, upon acceleration of any
Debt Securities, collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest
thereon, (f) the creation, validity, attachment, perfection, or priority of any lien or security interest, (g) advance waivers of claims,
defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or
at law, or other procedural rights, (h) waivers of broadly or vaguely stated rights, (i) provisions for exclusivity, election or cumulation
of rights or remedies, (j) provisions authorizing or validating conclusive or discretionary determinations, (k) grants of setoff rights,
(l) proxies, powers and trusts, (m) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or
property, (n) any provision to the extent it requires that a claim with respect to a security denominated in other than U.S. dollars (or
a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange at a particular date, to the extent applicable
law otherwise provides, and (o) the severability, if invalid, of provisions to the foregoing effect.
With your consent, with respect
to our opinions set forth in paragraphs 1 through 4, we have assumed (a) that each of the Debt Securities, Depositary Shares, Warrants
and Units and the Applicable Indenture, deposit agreements, warrant agreements and unit agreements governing such Securities (collectively,
the “Documents”) will be governed by the internal laws of the State of New York, (b) that each of the Documents has
been or will be duly authorized, executed and delivered by the parties thereto, (c) that each of the Documents constitutes or will constitute
legally valid and binding obligations of the parties thereto other than the Company, enforceable against each of them in accordance with
their respective terms, and (d) that the status of each of the Documents as legally valid and binding obligations of the parties will
not be affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations
or court or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations from, or to make required
registrations, declarations or filings with, governmental authorities.
This opinion is for your benefit
in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable
provisions of the Act. This opinion letter is limited to the matters stated herein, and no opinion may be implied or inferred beyond the
matters expressly stated in this opinion letter. This opinion letter is given as of the date hereof, and we assume no obligation to advise
you after the date hereof of facts or circumstances that come to our attention or changes in the law, including judicial or administrative
interpretations thereof, that occur which could affect the opinions contained herein. We consent to your filing this opinion as an exhibit
to the Registration Statement and to the reference to our firm contained in the Prospectus under the heading “Legal Matters.”
We further consent to the incorporation by reference of this letter and consent into any registration statement or post-effective amendment
to the Registration Statement filed pursuant to Rule 462(b) under the Act with respect to the Securities. In giving such consent, we do
not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations
of the Commission thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Cozen O’Connor |
| |
Cozen O’Connor |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in
this Registration Statement on Form S-3 of Limbach Holdings, Inc. of our report dated March 13, 2024 relating to the consolidated financial
statements and effectiveness of internal control over financial reporting appearing in the Annual Report on Form 10-K of Limbach Holdings,
Inc. for the year ended December 31, 2023, and to the reference to us under the heading “Experts” in the prospectus.
| |
/s/ Crowe LLP |
| |
Crowe LLP |
| |
|
| Oak Brook, Illinois |
| November 5, 2024 |
Exhibit 107
Calculation of Filing Fee Table
Form S-3
(Form Type)
LIMBACH HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
Table 1 - Newly Registered Securities
Security
Type | |
Security
Class Title | |
Fee
Calculation
Rule | |
Amount
Registered(1) | | |
Proposed
Maximum
Offering
Price Per
Unit(1) | | |
Maximum
Aggregate
Offering
Price(1) | | |
Fee
Rate(1) | | |
Amount of
Registration
Fee(1) | |
| Equity | |
Common Stock, par value $0.0001 per share | |
Rule 457(r) | |
| | | |
| | | |
| | | |
| | | |
| | |
| Equity | |
Preferred Stock, par value $0.0001 per share | |
Rule 457(r) | |
| | | |
| | | |
| | | |
| | | |
| | |
| Other | |
Depositary Shares | |
Rule 457(r) | |
| | | |
| | | |
| | | |
| | | |
| | |
| Debt | |
Debt Securities | |
Rule 457(r) | |
| | | |
| | | |
| | | |
| | | |
| | |
| Other | |
Units | |
Rule 457(r) | |
| | | |
| | | |
| | | |
| | | |
| | |
| Equity | |
Warrants | |
Rule 457(r) | |
| | | |
| | | |
| | | |
| | | |
| | |
| | Total Offering Amounts | | |
| | | |
| | | |
| | | |
| | |
| | Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| | |
| | Total Fee Offsets | | |
| | | |
| | | |
| | | |
| | |
| | Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| | |
| | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | |
| (1) | Omitted pursuant to Instruction 2.A.iii.c of Form S-3. In accordance with Rules 456(b) and
457(r) under the Securities Act of 1933, the registrant is deferring payment of all of the registration fee. An indeterminate number
of the securities of each identified class are being registered as may from time to time be offered at indeterminate prices, including
an indeterminate number or amount of securities that may be issued upon settlement, exercise, conversion or exchange of securities offered
hereunder, or pursuant to anti-dilution provisions. Separate consideration may or may not be received for securities that are issuable
upon settlement, exercise, conversion or exchange of other securities or that are issued in units. |
Limbach (NASDAQ:LMB)
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Limbach (NASDAQ:LMB)
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