LIND Lindblad Expeditions Holdings Inc

Registration No. 333-________

 

As filed with the United States Securities and Exchange Commission on September 11, 2015

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

__________________________________

  

FORM S-8

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

__________________________________

 

LINDBLAD EXPEDITIONS HOLDINGS, INC.

(Exact name of Registrant as specified in its charter)

 

Delaware		27-4749725
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
96 Morton Street, 9th Floor, New York, New York		10014
(Address of principal executive offices)		(Zip Code)

 

LINDBLAD EXPEDITIONS HOLDINGS, INC. 2015 LONG-TERM INCENTIVE PLAN

LINDBLAD EXPEDITIONS, INC. 2012 STOCK INCENTIVE PLAN

(Full title of the plans)

 

Sven-Olof Lindblad

President and Chief Executive Officer

Lindblad Expeditions Holdings, Inc.

96 Morton Street, 9th Floor

New York, New York 10014
(212) 261-9000

(Name, address and telephone number of agent for service)

__________________________________

 

Large accelerated filer  ☐

Accelerated filer  ☒

Non-accelerated filer ☐

Smaller reporting company ☐

__________________________________

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered		Amount to be Registered (1)		Proposed Maximum Offering Price Per Share				Proposed Maximum Aggregate Offering Price				Amount of Registration Fee
2015 Long-Term Incentive Plan:   Common Stock $0.0001 par value		2,500,000 shares		$	9.42	(2)		$	23,550,000			$	2,737
2012 Stock Incentive Plan:   Common Stock $0.0001 par value		3,821,696 shares		$	1.76	(3)		$	6,726,185			$	782
Total		6,321,696 shares			__			$	30,276,185			$	3,519

 

(1)

Amount to be registered consists of (i) an aggregate of 2,500,000 shares of Common Stock (the “Common Stock”) of Lindblad Expeditions Holdings, Inc. to be issued pursuant to the grant or exercise of awards to participants under the Lindblad Expeditions Holdings, Inc. 2015 Long-Term Incentive Plan (the “2015 Plan”) and (ii) 3,821,696 shares of Common Stock issuable upon the exercise of an aggregate of 3,821,696 outstanding stock options to participants under the Lindblad Expeditions, Inc. 2012 Stock Incentive Plan (the “2012 Plan”). Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares of Common Stock that may become issuable in accordance with the adjustment and anti-dilution provisions of the 2015 Plan and the 2012 Plan.

 

(2)

Determined in accordance with Rules 457(c) and 457(h) under the Securities Act, the registration fee calculation is based on the average of the high and low prices of the Common Stock as reported on the NASDAQ Capital Market on September 9, 2015.

 

(3)

Determined in accordance with Rule 457(h) under the Securities Act, the registration fee calculation is based on the $1.76 exercise price of the 3,821,696 outstanding options under the 2012 Plan.

__________________________

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents constituting Part I of this registration statement (this “Registration Statement”) will be sent or given to participants in the plans as provided by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”).

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

 

The following documents, filed by Lindblad Expeditions Holdings, Inc. (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference and deemed to be a part hereof:

 

	●	The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2014;
	●	The Registrant’s Definitive Proxy Statements filed on June 19, 2015 and May 4, 2015;
	●	The Registrant’s Definitive Merger Proxy Statement filed June 24, 2015;
	●	The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2015 and June 30, 2015;
	●	The Registrant’s Current Reports on Form 8-K filed January 8, 2015; February 11, 2015, March 10, 2015 (excluding Item 7.01 and related exhibits); March 19, 2015; March 20, 2015; April 21, 2015; May 4, 2015; May 15, 2015 (excluding Item 7.01 and related exhibits); May 22, 2015; July 1, 2015; July 8, 2015 (excluding Item 7.01 and the related exhibits); July 10, 2015 (as amended on August 7, 2015 and September 2, 2015); August 3, 2015; and August 4, 2015 (excluding Item 7.01 and the exhibit related thereto); and
	●	The description of our common stock contained in or incorporated into the Registrant’s Registration Statement on Form 8-A, filed April 29, 2013, and any amendment or report updating that description.

 

All other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such documents.

 

Any statement contained in a document incorporated or deemed incorporated herein by reference shall be deemed to be modified or superseded for the purpose of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated herein by reference modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

 

Item 4.

Description of Securities.

 

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

 

None.

 

Item 6.

Indemnification of Directors and Officers.

 

Subsection (a) of Section 145 of the General Corporation Law of the State of Delaware, or the DGCL, empowers a corporation to indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.

 

Subsection (b) of Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or 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, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators. Section 145 also empowers the corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.

 

 

Section 102(b)(7) of the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.

 

The Registrant’s certificate of incorporation provides that all directors, officers, employees and agents of the registrant shall be entitled to be indemnified by the Registrant to the fullest extent permitted by Section 145 of the Delaware General Corporation Law.

 

Paragraph B of Article Eighth of the Registrant’s certificate of incorporation provides:

 

“The Corporation, to the full extent permitted by Section 145 of the DGCL, as amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit or proceeding for which such officer or director may be entitled to indemnification hereunder shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized hereby.”

 

The Registrant has purchased directors’ and officers’ liability insurance that would indemnify its directors and officers against damages arising out of certain kinds of claims that might be made against them based on their negligent acts or omissions while acting in their capacity as such.

 

The Registrant’s agreements with Sven-Olof Lindblad, Ian Rogers and Trey Byus each provide that it shall indemnify the executive to the fullest extent permitted by the laws of the State of Delaware against all damages, costs, expenses and other liabilities reasonably incurred or sustained in connection with any suit, action or proceeding the executive may be made a party by reason of being or having been a director or officer of the company or any of its subsidiaries, or having served in any other capacity or taken any other action purportedly on behalf of or at the request of the company or any of its subsidiaries.

 

Item 7.

Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.

Exhibits.

 

The exhibits filed herewith or incorporated herein by reference are set forth in the attached Exhibit Index.

 

 

Item 9.

Undertakings.

 

(a)          The undersigned Registrant hereby undertakes:

 

(1)          To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)          To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)         To reflect in the prospectus any facts or events arising after the effective date of 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) of Securities Act 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; and

 

(iii)        To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

 

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

 

(2)          That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, 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 of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, in a primary offering of securities of the 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 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 Registrant relating to the offering required to be filed pursuant to Rule 424 under the Securities Act;

 

(ii)         Any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant;

 

 

(iii)        The portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and

 

(iv)        Any other communication that is an offer in the offering made by the Registrant to the purchaser.

 

(b)          The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c)          Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

  

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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this day of September 11, 2015.

 

	LINDBLAD EXPEDITIONS HOLDINGS, INC.
	By:	/s/ Sven-Olof Lindblad
		Sven-Olof Lindblad
		Chief Executive Officer and President

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated below on September 11, 2015. Each person whose signature appears below constitutes and appoints Sven-Olof Lindblad and Ian Rogers, and each of them individually, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and any additional registration statement to be filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, may lawfully do or cause to be done by virtue hereof.

 

Signature		Title
/s/ Sven-Olof Lindblad		Chief Executive Officer, President and Director (Principal Executive Officer)
Sven-Olof Lindblad
/s/ Ian Rogers		Chief Operating Officer, Chief Financial Officer and Vice President (Principal Financial and Accounting Officer)
Ian Rogers
/s/ Mark D. Ein		Director
Mark D. Ein
/s/ Dyson Dryden		Director
Dyson Dryden
/s/ John M. Fahey		Director
John M. Fahey
/s/ Paul J. Brown		Director
Paul J. Brown
/s/ Bernard W. Aronson		Director
Bernard W. Aronson

 

 

EXHIBIT INDEX

 

Exhibit No.		Description		Included		Form		Filing Date
2.1		Agreement and Plan of Merger, dated as of March 9, 2015, by and among Capitol Acquisition Corp. II, Argo Expeditions, LLC, Argo Merger Sub, Inc. and Lindblad Expeditions, Inc.		By Reference		8-K		March 10, 2015
2.2		Amendment No. 1 to Agreement and Plan of Merger, dated as of April 30, 2015, by and among Capitol Acquisition Corp. II, Argo Expeditions, LLC, Argo Merger Sub, Inc. and Lindblad Expeditions, Inc.		By Reference		8-K		May 4, 2015
2.3		Amendment No. 2 to Agreement and Plan of Merger, dated as of May 1, 2015, by and among Capitol Acquisition Corp. II, Argo Expeditions, LLC, Argo Merger Sub, Inc. and Lindblad Expeditions, Inc.		By Reference		8-K		May 4, 2015
3.1		Second Amended and Restated Certificate of Incorporation.		By Reference		DEFM 14-A		June 24, 2015
3.2		Bylaws.		By Reference		S-1		February 15, 2011
4.1		Specimen Common Stock Certificate.		By Reference		8-K		July 10, 2015
10.1		2015 Long-Term Incentive Plan.		By Reference		DEFM 14-A		June 24, 2015
10.2		Lindblad 2012 Stock Incentive Plan.		By Reference		8-K		July 10, 2015
10.3		Employment Agreement between Ian Rogers and the Company and Assignment and Assumption of Option Award Agreement.		By Reference		8-K		July 10, 2015
10.4		Employment Agreement between Trey Byus and the Company and Assignment and Assumption of Option Award Agreement.		By Reference		8-K		July 10, 2015
5.1		Opinion of Foley & Lardner LLP (including consent of counsel)		Herewith
23.1		Consent of Foley & Lardner LLP (filed as part of Exhibit (5))		Herewith
23.2		Consent of Marcum LLP		Herewith
24		Powers of Attorney (included on the signature page to this Registration Statement).		Herewith

 

  

E-1

Exhibit 5.1

 

	ATTORNEYS AT LAW Washington Harbour 3000 K Street, N.W. Suite 600 Washington, D.C. 20007-5109 202.672.5300 TEL 202.672.5399 FAX www.foley.com
September 11, 2015

 

Lindblad Expeditions Holdings, Inc.

96 Morton Street, 9^th Floor

New York, NY 10014

 

Ladies and Gentlemen:

 

We have acted as counsel to Lindblad Expeditions Holdings, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of the Registration Statement on Form S-8 (Registration No. 333- ____________) (as it may be amended from time to time, the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on the date hereof relating to up to 6,321,696 shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”), consisting of (i) an aggregate of 2,500,000 shares of Common Stock to be issued pursuant to the grant or exercise of awards to participants under the Lindblad Expeditions Holdings, Inc. 2015 Long-Term Incentive Plan (the “2015 Plan”) and (ii) an aggregate of 3,821,696 Shares of Common Stock issuable upon the exercise of an aggregate of 3,821,696 outstanding stock options by participants under the Lindblad Expeditions, Inc. 2012 Stock Incentive Plan (the “2012 Plan” and, together with the 2015 Plan, the “Plans”).

 

In connection with this opinion, we have examined the following documents: (i) the Registration Statement, (ii) the Second Amended and Restated Certificate of Incorporation of the Company, (iii) the Bylaws of the Company, (iv) the Plans, and (v) certain resolutions adopted by the Board of Directors of the Company.

 

We have also examined and relied upon originals or copies, certified or otherwise identified or authenticated to our satisfaction, of such corporate records, instruments, agreements or other documents of the Company, and certificates of officers of the Company as to certain factual matters, and have made such investigation of law and have discussed with officers and representatives of the Company such questions of fact, as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In our examination, we have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing any document.

 

Based upon and subject to the foregoing, we are of the opinion that the Shares being registered pursuant to the Registration Statement have been duly authorized and, when issued and delivered upon the grant or exercise of awards in accordance with the terms of the Plans, will be validly issued, fully paid and non-assessable.

 

Boston Brussels CHICAGO Detroit

JACKSONVILLE LOS ANGELES MADISON MIAMI

MILWAUKEE NEW YORK ORLANDO SACRAMENTO

SAN DIEGO SAN DIEGO/DEL MAR SAN FRANCISCO SHANGHAI

SILICON VALLEY TALLAHASSEE TAMPA TOKYO WASHINGTON, D.C.

 

 

 

 

Lindblad Expeditions Holdings, Inc.

Page 2

 

We render no opinion as to the effect of the laws of any state or jurisdiction other than the corporate law of the State of Delaware. We assume no obligation to supplement this opinion letter if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof.

 

We hereby consent to the filing of this letter as an exhibit to the Registration Statement and to the reference to our firm under the caption "Legal Matters" in the prospectus that is a part of the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of the rules and regulations of the Commission.

 

	Very truly yours,
	/s/ Foley & Lardner LLP

 

 

 

Exhibit 23.2

 

INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT

 

We consent to the incorporation by reference in this Registration Statement of Lindblad Expeditions Holdings, Inc. on Form S-8 of our report dated March 13, 2015, with respect to our audits of the financial statements and the related statements of operations, comprehensive loss, changes in stockholders' equity and cash flows of Capitol Acquisition Corp. II as of December 31, 2014 and 2013 and for the years ended December 31, 2014, 2013, and 2012 appearing in the Annual Report on Form 10-K of Lindblad Expeditions Holdings, Inc., formerly known as Capitol Acquisition Corp. II, for the year ended December 31, 2014.

 

 

 

Marcum LLP

Melville, NY

September 11, 2015

 

 

 

 

INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT

 

We consent to the incorporation by reference in this Registration Statement of Lindblad Expeditions Holdings, Inc. on Form S-8 of our report dated March 30, 2015, except for Note 16B, which the date is May 8, 2015, with respect to our audits of the consolidated financial statements and the related consolidated statements of income, changes in stockholders' equity and cash flows of Lindblad Expeditions, Inc. and Subsidiaries as of December 31, 2014 and 2013 and for the years ended December 31, 2014, 2013, and 2012 appearing in the Definitive Merger Proxy of Lindblad Expeditions Holdings, Inc., formerly known as Capitol Acquisition Corp. II, for the year ended December 31, 2014 filed on June 24, 2015.

 

 

 

Marcum LLP

Melville, NY

September 11, 2015