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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): February 8, 2023
LORDSTOWN MOTORS CORP.
(Exact name of registrant as specified in its
charter)
| Delaware |
001-38821 |
83-2533239 |
(State or other jurisdiction
of incorporation) |
(Commission
File Number) |
(IRS Employer
Identification No.) |
2300 Hallock Young Road
Lordstown, Ohio 44481
(Address of principal executive offices,
including zip code)
Registrant’s
telephone number, including area code: (234)
285-4001
N/A
(Former name or former address, if changed since last report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which
registered |
| Class A common stock, par value $0.0001 per share |
|
RIDE |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange Act. ¨
As previously disclosed, on January 26, 2023,
the Company filed a petition in the Court of Chancery pursuant to Section 205 of the Delaware General Corporation Law seeking validation
of the Company’s Second Amended and Restated Certificate of Incorporation and the shares issued pursuant thereto to resolve any
uncertainty with respect to those matters (the “Section 205 Action”). The Section 205 Action filed by the Company in the
Court of Chancery is captioned In re Lordstown Motors Corp., C.A. No. 2023-0083-LWW (Del. Ch.). A copy of the Company’s petition
filed in the Section 205 Action is attached as an exhibit to this Form 8-K. The same day the Section 205 Action was filed, the Company
also moved that the Court’s consideration of the Section 205 Action be expedited.
On February 2, 2023, the Court of Chancery granted
the Company’s motion for expedited proceedings in the Section 205 Action. The Court of Chancery directed the Company (i) to file
this Form 8-K, attaching the petition filed by the Company in the Section 205 Action; and (ii) to notify stockholders that the Court
of Chancery will hold a final hearing to consider the merits of the petition filed by the Company in the Section 205 Action on February
20, 2023, at 11:00 a.m. Eastern Time, at the Leonard L. Williams Justice Center, 500 North King Street, Wilmington, Delaware 19801 (the
“Section 205 Hearing”). This Form 8-K constitutes notice of the Section 205 Hearing. If any stockholder of the Company wishes
to express a position on the Section 205 Action, such stockholders of the Company may (i) appear at the hearing in the Section 205 Action
or (ii) file a written submission with the Register in Chancery, Leonard L. Williams Justice Center, 500 North King Street, Wilmington,
Delaware 19801, referring to the case caption, In re Lordstown Motors Corp., C.A. No. 2023-0083-LWW (Del. Ch.), in advance of
the Section 205 Hearing, and any such written submission should be emailed to the Company’s counsel, Kevin M. Gallagher, Richards,
Layton & Finger, P.A., at gallagher@rlf.com.
Forward-Looking Statements
This report
includes forward looking statements. These statements are made under the “safe harbor” provisions of the U.S. Private
Securities Litigation Reform Act of 1995. These statements may be identified by words such as “feel,”
“believes,” expects,” “estimates,” “projects,” “intends,”
“should,” “is to be,” or the negative of such terms, or other comparable terminology. Forward-looking
statements are statements that are not historical facts. Such forward-looking statements are not guarantees of future performance
and are subject to risks and uncertainties, which could cause actual results to differ materially from the forward-looking
statements contained herein due to many factors. With respect to the matters addressed in this report, no assurances can be made
regarding the outcome of our proceeding pursuant to Section 205 of the Delaware General Corporation Law or any claims, proceedings
or litigation regarding the authorization of our common stock. Our Section 205 proceeding is, and any other litigation regarding the
authorization of our stock would be, subject to uncertainties inherent in the litigation process, and may not result in timely
resolution of the uncertainty regarding our capitalization, if at all. If we are unsuccessful in the Section 205 proceeding, claims
alleging that a portion of our Class A common stock was not authorized could have a material adverse effect on the Company,
including on our ability to complete financing transactions. Additional information on potential factors that could affect the
financial results of the Company and its forward-looking statements is included in its most recent Form 10-K and subsequent filings
with the Securities and Exchange Commission. All forward-looking statements are qualified in their entirety by this cautionary
statement. Any forward-looking statements speak only as of the date on which they are made, and Lordstown Motors undertakes no
obligation to update any forward-looking statement to reflect events or circumstances after the date of this report.
| Item 9.01. |
Financial Statements and
Exhibits. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
LORDSTOWN MOTORS CORP. |
| |
|
| |
By: |
/s/ Melissa Leonard |
| |
Name: |
Melissa Leonard |
| |
Title: |
Executive Vice President, General Counsel & Secretary |
Date: February 8, 2023
Exhibit
99.1
|
EFiled: Jan 26 2023 07:30AM EST
Transaction
ID 68971805
Case
No. 2023-0083- |
 |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
| IN RE LORDSTOWN MOTORS CORP. |
C.A. No. 2023-____- |
VERIFIED PETITION FOR RELIEF PURSUANT TO
8 DEL. C. § 205
Petitioner Lordstown Motors
Corp. (“Lordstown” or the “Company”), by and through its undersigned counsel, brings this petition pursuant to
8 Del. C. § 205, seeking to have this Court validate a potentially defective corporate act as follows:
NATURE OF THE ACTION
1. Under 8 Del. C. § 242 and the February 27, 2019 Amended and Restated Certificate of Incorporation of the Company (Exhibit A,
“Old Certificate of Incorporation”), the holders of a majority of the outstanding shares of Common Stock of the Company were
required to approve an amendment to the Old Certificate of Incorporation to increase the aggregate number of authorized shares of common
stock.
2. Pursuant to its October 8, 2020 Proxy (Exhibit B, “2020 Proxy”), the Company solicited stockholder approval to amend
and restate its Old Certificate of Incorporation, among other things, to increase the number of authorized shares of Class A Common
Stock of the Company from 100 million to 300 million (the “2020 Class A Increase Amendment”). The 2020 Proxy stated that
approval of the 2020 Class A Increase Amendment would “require[] the affirmative vote (in person or by proxy) of holders of
a majority of the outstanding shares of Class A common stock and Class B common stock entitled to vote thereon at the special
meeting, voting as a single class” (the “2020 Voting Standard”). The 2020 Class A Increase Amendment was approved
at an October 22, 2020 special meeting of stockholders (“Special Meeting”), which vote included 11,292,011 shares of
Class A Common Stock voting in favor and less than 50,000 voting against or abstaining. Following the approval of the 2020 Class A
Increase Amendment, the Second Amended and Restated Certificate of Incorporation of the Company became effective upon filing with the
Secretary of State of the State of Delaware on October 23, 2020 (Exhibit C, “Certificate of Incorporation”).
3. On
October 23, 2020, the Company closed its merger with Lordstown Motors Corp. resulting in the issuance of an aggregate of
86,949,893 shares of Class A Common Stock in that transaction and upon conversion of other outstanding securities into
Class A Common Stock as a result of the merger. Just prior to closing, the Company issued 50,000,000 shares of Class A
Common Stock in a PIPE financing transaction. Thus, the issuance at the time of the merger (net of a small number of shares that
were redeemed) increased the total number of shares of Class A Common Stock the Company had outstanding from 78,000,000 to
164,948,923 shares. Following the closing of the merger, the Company issued another 50,171,320 shares prior to amending the
Certificate of Incorporation in 2022 to further increase the number of authorized shares, resulting in a potential overissue of
115,120,243 shares. The Company’s Class A Common Stock trades on the NASDAQ.
4. On
or about March 24, 2022, eighteen months after the 2020 Class A Increase Amendment was filed with the Delaware Secretary
of State and became effective, the Company received a demand letter from three purported stockholders of the Company
(Exhibit D, “Letter”), challenging whether the 2020 Class A Increase Amendment was validly approved in
accordance with Delaware law. The Letter asserted that the 2020 Voting Standard was incorrect under the terms of the Old Certificate
of Incorporation and Section 242(b)(2) of the General Corporation Law of the State of Delaware (“DGCL”).
Section 242(b)(2) provides in relevant part:
The holders of the outstanding shares
of a class shall be entitled to vote as a class upon a proposed amendment, whether or not entitled to vote thereon by the certificate
of incorporation, if the amendment would increase or decrease the aggregate number of authorized shares of such class . . . . The number
of authorized shares of any such class or classes of stock may be increased or decreased . . . by the affirmative vote of the holders
of a majority of the stock of the corporation entitled to vote irrespective of this subsection, if so provided in the . . . certificate
of incorporation . . . .
Section 242(b)(2) thus provides
that an amendment to change the number of authorized shares of a class of stock requires a separate vote of such class unless the
certificate of incorporation contains a so-called “Section 242(b)(2) opt-out” provision. The Letter asserted
that the Class A Common Stock was a separate class of stock, and therefore, since the certificate of incorporation did not
contain a Section 242(b)(2) opt out provision, that the 2020 Class A Increase Amendment required approval by the
holders of a majority of the outstanding shares of Class A Common Stock voting as a single class, that the 2020 Class A
Increase Amendment did not receive such approval, and that the 2020 Class A Increase Amendment was therefore unauthorized.
5. On April 1, 2022, the Company filed a Form 8-K with the United States Securities and Exchange Commission indicating receipt
of the Letter, its allegations, that the Company’s Board of Directors (“Board”) had reviewed the Letter and that, in
reliance on the advice of several law firms, including a legal opinion of Delaware counsel (Exhibit E, the “Opinion”),
had determined that the assertions regarding Section 242(b) were incorrect and that a separate class vote of the Class A
Common Stock was not required in order to approve the 2020 Class A Increase Amendment.
6. The
Opinion notes that several bases support the conclusion that no separate vote of the Class A Common Stock was required for the
2020 Class A Increase Amendment. First, the Old Certificate of Incorporation provides that the Company “is
authorized to issue 111,000,000 shares, consisting of (a) 110,000,000 shares of common stock (the ‘Common Stock’),
including (i) 100,000,000 shares of Class A Common Stock (the ‘Class A Common Stock’) and
(ii) 10,000,000 shares of Class B Common Stock (the ‘Class B Common Stock’), and (b) 1,000,000
shares of preferred stock (the ‘Preferred Stock’).” Old Certificate of Incorporation Art. IV, § 4.1. The
Opinion flags this “(a)-(b)” segmentation structure and notes that the Old Certificate of Incorporation’s use of
the word “including,” together with the fact that 100,000,000 and 10,000,000 sum to 110,000,000, demonstrate that the
Class A Common Stock and Class B Common Stock were two subtypes within the broader category of Common Stock. Second,
the Opinion notes the Old Certificate of Incorporation’s repeated reference to “series of Common Stock” and
“series of Preferred Stock” as indicating that the Company had two classes of stock – Common Stock and Preferred
Stock, and that the Class A Common Stock and the Class B Common Stock were series of the class of Common Stock. Old
Certificate of Incorporation Art. IV, §§ 4.2, 4.3(iii), 4.3(c), 4.3(d). Third, the Opinion also notes that the
Delaware Division of Corporations’ records indicated it interpreted the language used in Article IV Section 4.1 as
having created two authorized “stock classes” of capital stock denoted “Common” and “Preferred,”
not three classes of Class A Common Stock, Class B Common Stock, and Preferred Stock. The Opinion also notes that where
the certificate of incorporation, read as a whole, makes clear that shares have been divided into a class, and a class has been
divided into series—as is the case with the Class A Common Stock and Class B Common Stock being clearly designated
in the Old Certificate of Incorporation as “series” of a single class of Common Stock—the naming convention,
including the use of the term “class” to designate a specific series of stock within a class, will not override the
substantive terms of the certificate of incorporation.
7. On
December 27, 2022, this Court issued an opinion in Garfield v. Boxed, Inc., that calls into question the validity of
the 2020 Class A Increase Amendment. Like this case, the defendant company in Boxed, Inc. had sought stockholder approval
to amend its certificate of incorporation to increase the number of authorized shares of Class A common stock in connection with
a de-SPAC transaction. 2022 WL 17959766, at *1 (Del. Ch. Dec. 27, 2022). Before the stockholder vote, the plaintiff wrote a letter
to the company board asserting the proposed voting structure for the amendment violated the Class A common stockholders’ voting
rights under Section 242(b). Id. The company amended its merger agreement and supplemented its proxy statement to require
the separate vote of the holders of its Class A common stock for approval of the amendment. Id. The plaintiff filed an action
in this Court seeking attorneys’ fees and expenses for the benefits he allegedly conferred on the company and its stockholders
by facilitating this change. Id. In determining whether the plaintiff had conferred a corporate benefit worthy of fees and expenses,
the Court considered whether the plaintiff’s demand was meritorious – i.e., whether a combined vote of both Class A
and Class B common stock would have violated Section 242(b)(2). Id. at *4. The Court’s analysis hinged on whether the
certificate of incorporation authorized Class A and Class B as two classes of common stock, or as series within a single class.
Id. at *6. Noting that the certificate of incorporation only used the word “class” and not “series” to
describe the authorized common shares, id. at *7, the Court interpreted the certificate of incorporation as designating the Class A
and Class B as each being a class of common stock, not a series, id. at *9. The Court further observed that Section 102(a)(4) prescribes
that a corporation’s certificate of incorporation set forth the number of shares of all classes and of each class and whether the
shares are par or no-par, whereas no such preemptive recitation is required for series. Id. at *8. Because the certificate of
incorporation listed the number of shares of Class A common stock, the number of shares of Class B common stock, and the number
of shares of preferred stock, and set forth the par value of the shares in each, the Court read the certificate of incorporation as authorizing
three classes of stock in compliance with Section 102(a)(4). Id. at *9. Further, the certificate of incorporation’s
section on preferred stock vested the board with authority to provide for “one or more series of Preferred Stock” and to
establish “the number of shares to be included in each such series” by resolution, complying with Section 102(a)(4)’s
prescription for granting board authority to fix the number and terms of series of stock that are not provided in the certificate of
incorporation by resolution. Id. See also 8 Del. C. § 151(g). The certificate of incorporation did not include any such provision
fixing, or granting the board authority to fix, a series of common stock. Id. The Court thus held, in the context of a fee application,
that the plaintiff’s claim that Section 242(b)(2) required a separate Class A vote for the amendment was meritorious
when filed. Id.
8. Like
the certificate of incorporation in Boxed, Inc., (i) the Old Certificate of Incorporation refers to the authorized
common shares as classes, (ii) Section 4.1 of the Old Certificate of Incorporation sets forth the number of shares and par
value of Class A Common Stock, Class B Common Stock, and Preferred Stock, and (iii) Section 4.2 of the Old
Certificate of Incorporation vests the Board with authority to provide for “one or more series of Preferred Stock” and
establish “the number of shares to be included in each such series” by resolution, whereas no such prescription exists
for Common Stock. While the Court’s merits discussion in Boxed, Inc. is not a final ruling on the merits and
petitioner believes that the conclusion in Boxed, Inc. that the Class A Common Stock was a separate class and not a
series of the class of Common Stock is incorrect, the decision suggests that the Court would view the Company’s Class A
Common Stock as a separate class of capital stock. Under that view, the 2020 Class A Increase Amendment required a separate
vote of the Class A Common Stock, which was not received.
9. As a result of Boxed, Inc., the validity of shares of Common Stock issued, or to be issued, in reliance on the 2020 Class A
Increase Amendment has become and will remain uncertain absent relief from this Court, and the Company is unable to identify which of
its outstanding shares of Class A Common Stock are subject to this uncertainty.
10. The Company therefore brings this action pursuant to 8 Del. C. § 205, seeking this Court’s assistance in validating
the 2020 Class A Increase Amendment and the shares of Class A Common Stock issued pursuant thereto.
FACTUAL ALLEGATIONS
11. The Company is a Delaware corporation originally formed as a SPAC under the name DiamondPeak Holdings Corp. on November 13, 2018.
Following the Company’s de-SPAC acquisition of Lordstown EV Corporation on October 23, 2020, the Company, now named Lordstown
Motors Corp., designs and develops electric vehicles.
The Proxy Statement
12. On October 8, 2020, the Company filed the 2020 Proxy identifying six proposals to be voted on at the Special Meeting, including Proposal
No. 2: to increase the number of authorized shares under the Old Certificate of Incorporation, including those contemplated by the
2020 Class A Increase Amendment.
13. The purpose of the increase in the number of authorized shares was:
to provide adequate authorized share
capital to (i) accommodate (a) the issuance of 50,000,000 shares of Class A common stock concurrent with the closing the
issuance to the PIPE Investors in the PIPE Investment, (b) the issuance in the aggregate of 78,867,856 shares of Class A common
stock to Lordstown Stockholders and, upon the exercise of the options into which the Lordstown Vested Options convert, in each case in
connection with the Business Combination, (c) the issuance of a number of shares of Class A common stock upon the conversion
of Class B common stock in accordance with the terms of our Charter, (d) the issuance of up to 4,000,000 shares of Class A
common stock upon the conversion of the Convertible Promissory Notes in accordance with the terms thereof and I the potential issuance
of a number of Class A common stock upon the future conversion of outstanding private placement warrants, public warrants and the
BGL Warrants into shares of our Class A common stock and (ii) to provide flexibility for future issuances of capital stock if
determined by DiamondPeak’s board of directors to be in the best interests of the post-combination company without incurring the
risk, delay and potential expense incident to obtaining stockholder approval for a particular issuance.
Ex. B at 126.
The Special Meeting
14. There
were 35 million shares of common stock outstanding and entitled to vote at the Special Meeting, consisting of 28 million shares of
Class A Common Stock outstanding and 7 million shares of Class B Common Stock outstanding. Id. at 25. As disclosed
in the Company’s October 22, 2020 Form 8-K, the 2020 Class A Increase Amendment received the affirmative vote
of 18,292,011 shares, a majority of the 35 million shares entitled to vote, and the Company believed the 2020 Class A Increase
Amendment had received the requisite stockholder vote and been approved. The Letter, however, contended that because only 11,292,011
shares of Class A Common Stock voted in favor of the 2020 Class A Increase Amendment, the requisite vote for the 2020
Class A Increase Amendment had not been obtained because it had not been separately approved by the holders of a majority of
the then outstanding shares of Class A Common Stock. Ex. D at 6.
15. Following
the Special Meeting, the Company and the Board treated the approval of the 2020 Class A Increase Amendment as valid, as
evidenced by the Company’s subsequent public disclosures. As disclosed in its July 7, 2022 special meeting proxy
statement (the “July 2022 Proxy”), by June 30, 2022, the Company had issued 205,871,561 shares of Common Stock
and had reserved over 43,000,000 further shares for issuance. On August 18, 2022, the Company disclosed in its August 18,
2022 Form 8-K that stockholders had approved an amendment to the Certificate of Incorporation to increase further the number of
authorized shares of Class A common stock by 150,000,000. The Board had recommended the further increase in the authorized
number of shares of Common Stock to:
facilitate issuing shares in the event
that the Board determines that it is necessary or appropriate to (i) provide financial flexibility to raise additional capital through
the sale of equity securities, convertible securities or other equity linked securities, (ii) enter into strategic business transactions,
(iii) provide equity incentives to directors, officers and employees pursuant to equity compensation plans or (iv) other corporate
purposes.
July 2022 Proxy at 5.
Harm to the Company
16. The uncertainty regarding the Company’s capital structure and the validity of its stock created by the Boxed, Inc. decision
is causing (and will continue to cause) the Company harm. The Company proposed the 2020 Class A Increase Amendment in anticipation
of issuing additional shares of Class A Common Stock, and the Company has indeed issued more shares than authorized under the Old
Certificate of Incorporation. The Company anticipated requiring a further increase in the authorized number of shares per the July 2022
Proxy.
17. Without prompt relief from this Court validating the 2020 Class A Increase Amendment, the Company faces the risk of immediate and
significant harm due to the uncertainty caused by Boxed, Inc. as to the validity of the shares of Common Stock issued, or
to be issued, in reliance on the 2020 Class A Increase Amendment. The uncertainty as to the validity of the Company’s outstanding
shares will potentially cause market disruption, disrupt the Company’s commercial relationships, result in claims from holders of
such shares, and lead to consequent loss of value for the Company’s stockholders and loss of eligibility to remain listed on the
NASDAQ. Moreover, the Company cannot determine with certainty which stockholders hold putative stock and which stockholders hold valid
stock, creating uncertainty as to past and future voting results.
18. The
uncertainty also threatens to jeopardize the Company’s current and potential financing arrangements and operational matters. The
Company has equity financing transactions pending with a key business partner, and as a condition to closing, will need to certify the
number of shares it currently has outstanding and authorized for issuance, as well as the validity of the shares to be sold in such financings.
These financing arrangements were established as a critical step to develop a broad strategic partnership that leverages the capabilities
of both companies. Without this funding and the related development plan and milestones to be established between the parties as a further
condition to portions of the funding, the Company’s operations, future vehicle development plans and prospects will suffer. The
Company also recently entered into an at-the-market (“ATM”) financing arrangement with a sales agent, which is also subject
to closing conditions including the accuracy of the Company’s representations on capitalization. The financing transactions with
the key business partner and pursuant to the ATM facility are critical to the Company’s liquidity position, and the inability of
the Company to access this additional funding over the next several months would lead to significant financial distress. In addition,
even if these transactions are completed, the Company needs to raise substantial additional capital to execute its business plan, achieve
its production targets, develop additional vehicles, continue ongoing operations and remain a going concern. The uncertainty regarding
the validity of the Company’s stock would likely prevent the Company from raising additional capital through other sales of securities
and continuing as a going concern. The Company also relies, particularly given its lack of sufficient funding, on using its available
shares for compensating its employees, directors and officers with stock-based compensation as contemplated in the July 2022 Proxy.
The Company also has an upcoming annual meeting and needs to know how many shares it has outstanding and which can vote, otherwise its
stockholders may be disenfranchised by this uncertainty.
19. The 2020 Class A Increase Amendment was approved with the good faith belief that it was being consummated in accordance with Delaware
law and the Old Certificate of Incorporation. Upon receiving the Letter, the Company promptly investigated its allegations and acted in
reliance upon advice from several law firms, including the Opinion. None of the current pending litigation against the Company has raised
this issue and, based on the advice of counsel, the Company believed the 2020 Class A Increase Amendment to have been validly adopted
until this Court’s decision in Boxed, Inc. suggested this Court may have a different view of that issue.
20. Furthermore,
the Company is unable to ratify the 2020 Class A Increase Amendment on a timely basis pursuant to Section 204 because any
such ratification would require a vote of the holders of the Company’s valid stock under Section 204(d) and
Article Seven of the Certificate of Incorporation prohibits such ratification by written consent in lieu of a meeting of
stockholders. It is also unclear which stockholders would be able to vote on such a ratification. It has been over two years since
the vote on the 2020 Class A Increase Amendment and the Class A Common Stock has been actively traded on the NASDAQ since
that date. Thus, the Company has no practicable ability to effectively trace the shares that were issued prior to the 2020
Class A Increase Amendment. Further, since the Company went from 78,000,000 to over 164,000,000 outstanding shares at the
instant of the de-SPAC merger on October 23, 2020, even the 100,000,000 shares of Class A Common Stock authorized under
the Original Charter could not be fully identified because a large portion of such shares were issued simultaneously with the shares
in question under the 2020 Class A Increase Amendment. As a result, even if the original 78,000,000 outstanding shares could
conceivably be traced, that would leave approximately 67% of the Company’s purported shares outstanding as unable to vote on
the ratification or at the upcoming annual meeting.
21. The
Company respectfully seeks this Court’s assistance to validate the 2020 Class A Increase Amendment and the resulting
increase in the number of authorized shares of Common Stock, to prevent immediate and significant harm to the Company, its prospects
and its stockholders.
COUNT ONE
(Validation of Corporate Act Under 8 Del.
C. § 205)
22. The Company repeats and reiterates the allegations above as if fully set forth herein.
23. The Company is authorized to bring this petition under 8 Del. C. § 205(a).
24. Under 8 Del. C. § 205(a), this Court may determine the validity and effectiveness of any defective corporate act and any putative
stock. A defective corporate act includes any act or transaction purportedly taken by or on behalf of the corporation that is within the
power of a corporation but is void or voidable due to a failure of authorization. A failure of authorization includes, among other things,
the failure to authorize or effect an act or transaction in compliance with “(A) the provisions of [the DGCL], (B) the
certificate of incorporation or bylaws of the corporation ... if and to the extent such failure would render such act or transaction void
or voidable.” 8 Del. C. § 204(h)(2).
25. The Company filed and effectuated the 2020 Class A Increase Amendment with the good faith belief that the 2020 Class A Increase
Amendment was adopted in compliance with Delaware law.
26. The Company has treated the 2020 Class A Increase Amendment as valid and treated all acts in reliance on the 2020 Class A Increase
Amendment as valid.
27. The Company issued 115,120,243 shares of Class A Common Stock in reliance on the effectiveness of the 2020 Class A Increase
Amendment, and has reflected those shares as issued and outstanding in all of its SEC filings, financial statements and third party agreements
requiring it to indicate the number of authorized shares of Class A Common Stock since the time they were issued.
28. Third parties, including financing sources, key business partners, stockholders, employees and directors, have relied on the validity
of the 2020 Class A Increase Amendment and treated all acts in reliance on the 2020 Class A Increase Amendment as valid.
29. On information and belief, no persons would be harmed by the validation of the 2020 Class A Increase Amendment. The results of the
Special Meeting and the filing of the 2020 Class A Increase Amendment thereafter were all disclosed publicly, and actions have been
taken in reliance thereon.
30. As previously noted, the Company, its prospects and its stockholders may be irreparably and significantly harmed absent relief from this
Court.
PRAYER FOR RELIEF
WHEREFORE, the Company respectfully requests that
this Court enter an order as follows:
A. Validating
and declaring effective the 2020 Class A Increase Amendment, including the filing and effectiveness thereof;
B. Validating and declaring effective the 115,120,243 shares of Class A Common Stock issued in reliance on the effectiveness of the
2020 Class A Increase Amendment; and
C. Granting such other and further relief as this Court deems proper.
| |
/s/ Raymond J. DiCamillo |
| |
Raymond J. DiCamillo (#3188) |
| |
Kevin M. Gallagher (#5337) |
| |
Alexander M. Krischik (#6233) |
| |
Edmond S. Kim (#6835) |
| |
Nicholas F. Mastria (#7085) |
| |
Richards, Layton & Finger, P.A. |
| |
920 North King Street |
| |
Wilmington, Delaware 19801 |
| |
(302) 651-7700 |
| |
|
| Dated: January 26, 2023 |
Attorneys for Petitioner Lordstown Motors Corp. |
| |
EFiled: Jan 26 2023 07:30AM EST
Transaction ID 68971805
Case No. 2023-0083-
|
 |
| |
|
VERIFICATION |
| |
|
|
| State of Ohio |
|
) |
| |
|
) SS. |
| County of Cuyahoga |
|
) |
I,
Melissa Leonard, Executive Vice President, General Counsel and Secretary of Lordstown Motors Corp. (“Lordstown”), have been
authorized by Petitioner Lordstown to make this verification on its behalf. I hereby verify that I have read the foregoing Verified Petition
for Relief Pursuant to 8 Del. C. § 205 and that the facts recited therein are true and correct insofar as they concern the
acts and deeds of Lordstown, and are believed by me to be true insofar as they concern the acts and deeds of any other person or entity.
I
declare under penalty of perjury under the laws of Delaware that the foregoing is true and correct.
Executed
on the 24th day of January, 2023.
| |
/s/ Melissa Leonard |
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Melissa Leonard |
SWORN AND SUBSCRIBED before me
this
24th day of January, 2023
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| My commission expires: |
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SHEILA ANN MAIO |
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Notary Public |
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State of Ohio |
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My Comm. Expires |
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October 28, 2025 |
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EFiled: Jan 26 2023 07:30AM EST
Transaction ID 68971805
Case No. 2023-0083-
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Exhibit A
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DIAMONDPEAK HOLDINGS CORP.
February 27, 2019
DiamondPeak Holding Corp., a corporation organized
and existing under the laws of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is “DiamondPeak
Holdings Corp.” The original certificate of incorporation of the Corporation was filed with the Secretary of State of the
State of Delaware on November 13, 2018 (the “Original Certificate”).
2. This Amended and Restated Certificate of Incorporation
(the “Amended and Restated Certificate”), which both restates and amends the provisions of the Original Certificate,
was duly adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware, as amended from
time to time (the “DGCL”).
3. This Amended and Restated Certificate of Incorporation
shall become effective on the date of filing with the Secretary of State of Delaware.
4. The text of the Original Certificate is hereby
restated and amended in its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is DiamondPeak Holdings
Corp. (the “Corporation”).
ARTICLE II
PURPOSE
The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be organized under the DGCL. In addition to the powers and privileges conferred
upon the Corporation by law and those incidental thereto, the Corporation shall possess and may exercise all the powers and privileges
that are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation, including, but
not limited to, effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination,
involving the Corporation and one or more businesses (a “Business Combination”).
ARTICLE III
REGISTERED AGENT
The address of the Corporation’s registered
office in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington, County of New Castle, State of Delaware, 19808,
and the name of the Corporation’s registered agent at such address is Corporation Service Company.
ARTICLE IV
CAPITALIZATION
Section 4.1 Authorized Capital Stock.
The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized
to issue is 111,000,000 shares, consisting of (a) 110,000,000 shares of common stock (the “Common Stock”),
including (i) 100,000,000 shares of Class A Common Stock (the “Class A Common Stock”), and (ii) 10,000,000
shares of Class B Common Stock (the “Class B Common Stock”), and (b) 1,000,000 shares of
preferred stock (the “Preferred Stock”).
Section 4.2 Preferred Stock. Subject
to Article IX of this Amended and Restated Certificate, the Board of Directors of the Corporation (the “Board”)
is hereby expressly authorized to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock
and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations,
powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications,
limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance
of such series and included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant
to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt
any such resolution or resolutions.
Section 4.3 Common Stock.
(a) Voting.
(i) Except as otherwise required by law or this
Amended and Restated Certificate (including any Preferred Stock Designation), the holders of the shares of Common Stock shall exclusively
possess all voting power with respect to the Corporation.
(ii) Except as otherwise required by law or this
Amended and Restated Certificate (including any Preferred Stock Designation), the holders of shares of Common Stock shall be entitled
to one vote for each such share on each matter properly submitted to the stockholders of the Corporation on which the holders of the Common
Stock are entitled to vote.
(iii) Except as otherwise required by law or this
Amended and Restated Certificate (including any Preferred Stock Designation), at any annual or special meeting of the stockholders of
the Corporation, holders of the Class A Common Stock and holders of the Class B Common Stock, voting together as a single class,
shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders.
Notwithstanding the foregoing, except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock
Designation), holders of shares of any series of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated
Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series
of Preferred Stock or other series of Common Stock if the holders of such affected series of Preferred Stock or Common Stock, as applicable,
are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Amended
and Restated Certificate (including any Preferred Stock Designation) or the DGCL.
(b) Class B Common Stock.
(i) Shares of Class B Common Stock shall be
convertible into shares of Class A Common Stock on a one-for-one basis (the “Initial Conversion Ratio”)
automatically on the closing of the Business Combination.
(ii) Notwithstanding the Initial Conversion Ratio,
in the case that additional shares of Class A Common Stock, or Equity-linked Securities (as defined below), are issued or deemed
issued in excess of the amounts sold in the Corporation’s initial public offering of securities (the “Offering”)
and related to the closing of the initial Business Combination, all issued and outstanding shares of Class B Common Stock shall automatically
convert into shares of Class A Common Stock at the time of the closing of the initial Business Combination at a ratio for which:
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the numerator shall be equal to the sum of (A) 25% of all shares of Class A Common Stock issued or issuable (upon the conversion or exercise of any Equity-linked Securities or otherwise) by the Corporation, related to or in connection with the consummation of the initial Business Combination (excluding any securities issued or issuable to any seller in the initial Business Combination) plus (B) the number of shares of Class B Common Stock issued and outstanding prior to the closing of the initial Business Combination; and |
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the denominator shall be the number of shares of Class B Common Stock issued and outstanding prior to the closing of the initial Business Combination. |
As used herein, the term “Equity-linked
Securities” means any securities of the Corporation which are convertible into or exchangeable or exercisable for Common
Stock.
Notwithstanding anything to the contrary contained
herein, (i) the foregoing adjustment to the Initial Conversion Ratio may be waived as to any particular issuance or deemed issuance
of additional shares of Class A Common Stock or Equity-linked Securities by the written consent or agreement of holders of a majority
of the shares of Class B Common Stock then outstanding consenting or agreeing separately as a single class in the manner provided
in Section 4.3(b)(iii), and (ii) in no event shall the Class B Common Stock convert into Class A Common
Stock at a ratio that is less than one-for-one.
The foregoing conversion ratio shall also be adjusted
to account for any subdivision (by stock split, subdivision, exchange, stock dividend, reclassification, recapitalization or otherwise)
or combination (by reverse stock split, exchange, reclassification, recapitalization or otherwise) or similar reclassification or recapitalization
of the outstanding shares of Class A Common Stock into a greater or lesser number of shares occurring after the original filing of
this Amended and Restated Certificate without a proportionate and corresponding subdivision, combination or similar reclassification or
recapitalization of the outstanding shares of Class B Common Stock.
Each share of Class B Common Stock shall convert
into its pro rata number of shares of Class A Common Stock pursuant to this Section 4.3(b). The pro
rata share for each holder of Class B Common Stock will be determined as follows: Each share of Class B Common Stock
shall convert into such number of shares of Class A Common Stock as is equal to the product of one (1) multiplied by a fraction,
the numerator of which shall be the total number of shares of Class A Common Stock into which all of the issued and outstanding shares
of Class B Common Stock shall be converted pursuant to this Section 4.3(b) and the denominator of which shall
be the total number of issued and outstanding shares of Class B Common Stock at the time of conversion.
(iii) Voting. Except as otherwise
required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), for so long as any shares of Class B
Common Stock shall remain outstanding, the Corporation shall not, without the prior vote or written consent of the holders of a majority
of the shares of Class B Common Stock then outstanding, voting separately as a single class, amend, alter or repeal any provision
of this Amended and Restated Certificate, whether by merger, consolidation or otherwise, if such amendment, alteration or repeal would
alter or change the powers, preferences or relative, participating, optional or other or special rights of the Class B Common Stock.
Any action required or permitted to be taken at any meeting of the holders of Class B Common Stock may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the
holders of the outstanding Class B Common Stock having not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares of Class B Common Stock were present and voted and shall be delivered to the
Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of
the Corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the Corporation’s
registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt written notice of the taking of
corporate action without a meeting by less than unanimous written consent of the holders of Class B Common Stock shall, to the extent
required by law, be given to those holders of Class B Common Stock who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date
that written consents signed by a sufficient number of holders of Class B Common Stock to take the action were delivered to the Corporation.
(c) Dividends. Subject to applicable
law, the rights, if any, of the holders of any outstanding series of the Preferred Stock and the provisions of Article IX hereof,
the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or
capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation
legally available therefor and shall share equally on a per share basis in such dividends and distributions.
(d) Liquidation, Dissolution or Winding
Up of the Corporation. Subject to applicable law, the rights, if any, of the holders of any outstanding series of the Preferred
Stock and the provisions of Article IX hereof, in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders
of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders,
ratably in proportion to the number of shares of Class A Common Stock (on an as converted basis with respect to the Class B
Common Stock) held by them.
Section 4.4 Rights and Options.
The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to acquire from the Corporation
any shares of its capital stock of any class or classes, with such rights, warrants and options to be evidenced by or in instrument(s) approved
by the Board. The Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights,
warrants or options; provided, however, that the consideration to be received for any shares of capital stock issuable upon exercise thereof
may not be less than the par value thereof.
ARTICLE V
BOARD OF DIRECTORS
Section 5.1 Board Powers. The
business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority
expressly conferred upon the Board by statute, this Amended and Restated Certificate or the Bylaws of the Corporation (“Bylaws”),
the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the DGCL, this Amended and Restated Certificate, and any Bylaws adopted by the stockholders
of the Corporation; provided, however, that no Bylaws hereafter adopted by the stockholders of the Corporation shall invalidate any prior
act of the Board that would have been valid if such Bylaws had not been adopted.
Section 5.2 Number, Election and Term.
(a) The number of directors of the Corporation, other
than those who may be elected by the holders of one or more series of the Preferred Stock voting separately by class or series, shall
be fixed from time to time exclusively by the Board pursuant to a resolution adopted by a majority of the Board.
(b) Subject to Section 5.5 hereof,
the Board shall be divided into three classes, as nearly equal in number as possible and designated Class I, Class II and Class III.
The Board is authorized to assign members of the Board already in office to Class I, Class II or Class III. The term of
the initial Class I Directors shall expire at the first annual meeting of the stockholders of the Corporation following the effectiveness
of this Amended and Restated Certificate; the term of the initial Class II Directors shall expire at the second annual meeting of
the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate; and the term of the initial
Class III Directors shall expire at the third annual meeting of the stockholders of the Corporation following the effectiveness of
this Amended and Restated Certificate. At each succeeding annual meeting of the stockholders of the Corporation, beginning with the first
annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate, each of the
successors elected to replace the class of directors whose term expires at that annual meeting shall be elected for a three-year term
or until the election and qualification of their respective successors in office, subject to their earlier death, resignation or removal.
Subject to Section 5.5 hereof, if the number of directors that constitute the Board is changed, any increase or
decrease shall be apportioned by the Board among the classes so as to maintain the number of directors in each class as nearly equal as
possible, but in no case shall a decrease in the number of directors constituting the Board shorten the term of any incumbent director.
Subject to the rights of the holders of one or more series of Preferred Stock, voting separately by class or series, to elect directors
pursuant to the terms of one or more series of Preferred Stock, the election of directors shall be determined. Directors shall be elected
by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon.
The Board is hereby expressly authorized, by resolution or resolutions thereof, to assign members of the Board already in office to the
aforesaid classes at the time this Amended and Restated Certificate (and therefore such classification) becomes effective in accordance
with the DGCL.
(c) Subject to Section 5.5 hereof,
a director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor has
been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.
(d) Unless and except to the extent that the Bylaws
shall so require, the election of directors need not be by written ballot. The holders of shares of Common Stock shall not have cumulative
voting rights.
Section 5.3 Newly Created Directorships
and Vacancies. Subject to Section 5.5 hereof, newly created directorships resulting from an increase in the
number of directors and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal or other cause
may be filled solely and exclusively by a majority vote of the remaining directors then in office, even if less than a quorum, or by a
sole remaining director (and not by stockholders), and any director so chosen shall hold office for the remainder of the full term of
the class of directors to which the new directorship was added or in which the vacancy occurred and until his or her successor has been
elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.
Section 5.4 Removal. Subject to Section 5.5 hereof,
any or all of the directors may be removed from office at any time, but only for cause and only by the affirmative vote of holders of
a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election
of directors, voting together as a single class.
Section 5.5 Preferred Stock - Directors.
Notwithstanding any other provision of this Article V, and except as otherwise required by law, whenever the holders
of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors,
the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the
terms of such series of the Preferred Stock as set forth in this Amended and Restated Certificate (including any Preferred Stock Designation)
and such directors shall not be included in any of the classes created pursuant to this Article V unless expressly
provided by such terms.
ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers
conferred upon it by law, the Board shall have the power and is expressly authorized to adopt, amend, alter or repeal the Bylaws by the
affirmative vote of a majority of the total number of directors present at a regular or special meeting of the Board at which there is
a quorum or by unanimous written consent. The Bylaws also may be adopted, amended, altered or repealed by the stockholders; provided,
however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by law or by
this Amended and Restated Certificate (including any Preferred Stock Designation), the affirmative vote of the holders of at least a majority
of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required for the stockholders of the Corporation to adopt, amend, alter or repeal the Bylaws;
and provided further, however, that no Bylaws hereafter adopted by the stockholders of the Corporation shall invalidate any prior act
of the Board that would have been valid if such Bylaws had not been adopted.
ARTICLE VII
SPECIAL MEETINGS OF STOCKHOLDERS; ACTION BY
WRITTEN CONSENT
Section 7.1 Special Meetings. Subject to the rights,
if any, of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of
stockholders of the Corporation may be called only by a Chairman of the Board, a Chief Executive Officer of the Corporation, or the Board
pursuant to a resolution adopted by a majority of the Board, and the ability of the stockholders of the Corporation to call a special
meeting is hereby specifically denied. Except as provided in the foregoing sentence, special meetings of stockholders of the Corporation
may not be called by another person or persons.
Section 7.2 Advance Notice. Advance notice of stockholder
nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the
Corporation shall be given in the manner provided in the Bylaws.
Section 7.3 Action by Written Consent. Except as
may be otherwise provided for or fixed pursuant to this Amended and Restated Certificate (including any Preferred Stock Designation) relating
to the rights of the holders of any outstanding series of Preferred Stock, subsequent to the consummation of the Offering, any action
required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of
such stockholders and may not be effected by written consent of the stockholders other than with respect to our Class B Common Stock with
respect to which action may be taken by written consent.
ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION
Section 8.1 Limitation of Director Liability. A
director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same
exists or may hereafter be amended unless a director violated his or her duty of loyalty to the Corporation or its stockholders, acted
in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful
redemptions, or derived improper personal benefit from his or her actions as a director. Any amendment, modification or repeal of the
foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act
or omission occurring prior to the time of such amendment, modification or repeal.
Section 8.2 Indemnification and Advancement
of Expenses.
(a) To the fullest extent permitted by applicable
law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who is or was made
a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she
is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request
of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise
or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the
basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity
while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation,
attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such
indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses
(including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its
final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts
so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this Section 8.2 or
otherwise. The rights to indemnification and advancement of expenses conferred by this Section 8.2 shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 8.2(a),
except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses
to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board.
(b) The rights to indemnification and advancement
of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that any
indemnitee may have or hereafter acquire under law, this Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders
or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section 8.2 by
the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Amended and Restated Certificate
inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent
such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted
prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment
or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced
or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent
provision.
(d) This Section 8.2 shall
not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses
to persons other than indemnitees.
ARTICLE IX
BUSINESS COMBINATION REQUIREMENTS; EXISTENCE
Section 9.1 General.
(a) The provisions of this Article IX shall
apply during the period commencing upon the effectiveness of this Amended and Restated Certificate and terminating upon the consummation
of the Corporation’s initial Business Combination and no amendment to this Article IX shall be effective prior
to the consummation of the initial Business Combination unless approved by the affirmative vote of the holders of at least sixty-five
percent (65%) of all then outstanding shares of the Common Stock.
(b) Immediately after the Offering, a certain amount
of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriters’
over-allotment option) and certain other amounts specified in the Corporation’s registration statement on Form S-1, as initially
filed with the Securities and Exchange Commission on January 18, 2019, as amended (the “Registration Statement”),
shall be deposited in a trust account (the “Trust Account”), established for the benefit of the Public Stockholders
(as defined below) pursuant to a trust agreement described in the Registration Statement. Except for the withdrawal of interest to pay
taxes (less up to $100,000 of interest to pay dissolution expenses), none of the funds held in the Trust Account (including the interest
earned on the funds held in the Trust Account) will be released from the Trust Account until the earliest to occur of (i) the completion
of the initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is
unable to complete its initial Business Combination within 24 months from the closing of the Offering or (iii) the redemption of
shares in connection with a vote seeking to amend any provisions of this Amended and Restated Certificate (a) to modify the substance
or timing of the Corporation’s obligation to redeem 100% of the Offering Shares if the Corporation does not complete the initial
Business Combination within 24 months from the closing of the Offering or (b) relating to stockholders’ rights or pre-initial Business
Combination activity (as described in Section 9.7). Holders of shares of the Common Stock included as part of the units
sold in the Offering (the “Offering Shares”) (whether such Offering Shares were purchased in the Offering or
in the secondary market following the Offering and whether or not such holders are DiamondPeak Sponsor LLC (the “Sponsor”)
or officers or directors of the Corporation, or affiliates of any of the foregoing) are referred to herein as “Public Stockholders.”
Section 9.2 Redemption Rights.
(a) Prior to the consummation of the initial Business
Combination, the Corporation shall provide all holders of Offering Shares with the opportunity to have their Offering Shares redeemed
upon the consummation of the initial Business Combination pursuant to, and subject to the limitations of, Sections 9.2(b) and 9.2(c) (such
rights of such holders to have their Offering Shares redeemed pursuant to such Sections, the “Redemption Rights”)
hereof for cash equal to the applicable redemption price per share determined in accordance with Section 9.2(b) hereof
(the “Redemption Price”); provided, however, that the Corporation shall not redeem or repurchase Offering Shares
to the extent that such redemption would result in the Corporation’s failure to have net tangible assets (as determined in accordance
with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (or
any successor rule)) in excess of $5 million or any greater net tangible asset or cash requirement upon consummation of the Corporation’s
initial Business Combination which may be contained in the agreement relating to the initial Business Combination (such limitation hereinafter
called the “Redemption Limitation”). Notwithstanding anything to the contrary contained in this Amended and
Restated Certificate, there shall be no Redemption Rights or liquidating distributions with respect to any warrant issued pursuant to
the Offering.
(b) If the Corporation offers to redeem the Offering
Shares other than in conjunction with a stockholder vote on an initial Business Combination with a proxy solicitation pursuant to Regulation
14A of the Exchange Act (or any successor rules or regulations) and filing proxy materials with the Securities and Exchange Commission
(the “SEC”), the Corporation shall offer to redeem the Offering Shares upon the consummation of the initial
Business Combination, subject to lawfully available funds therefor, in accordance with the provisions of Section 9.2(a) hereof
pursuant to a tender offer in accordance with Rule 13e-4 and Regulation 14E of the Exchange Act (or any successor rule or regulation)
(such rules and regulations hereinafter called the “Tender Offer Rules”) which it shall commence prior
to the consummation of the initial Business Combination and shall file tender offer documents with the SEC prior to the consummation of
the initial Business Combination that contain substantially the same financial and other information about the initial Business Combination
and the Redemption Rights as is required under Regulation 14A of the Exchange Act (or any successor rule or regulation) (such rules and
regulations hereinafter called the “Proxy Solicitation Rules”), even if such information is not required under
the Tender Offer Rules; provided, however, that if a stockholder vote is required by law to approve the proposed initial Business Combination,
or the Corporation decides to submit the proposed initial Business Combination to the stockholders for their approval for business or
other legal reasons, the Corporation shall offer to redeem the Offering Shares, subject to lawfully available funds therefor, in accordance
with the provisions of Section 9.2(a) hereof in conjunction with a proxy solicitation pursuant to the Proxy Solicitation
Rules (and not the Tender Offer Rules) at a price per share equal to the Redemption Price calculated in accordance with the following
provisions of this Section 9.2(b). In the event that the Corporation offers to redeem the Offering Shares pursuant to
a tender offer in accordance with the Tender Offer Rules, the Redemption Price per share of the Common Stock payable to holders of the
Offering Shares tendering their Offering Shares pursuant to such tender offer shall be equal to the quotient obtained by dividing: (i) the
aggregate amount on deposit in the Trust Account as of two business days prior to the consummation of the initial Business Combination,
including interest not previously released to the Corporation to pay its taxes by (ii) the total number of then outstanding Offering
Shares. If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on the proposed initial Business
Combination pursuant to a proxy solicitation, the Redemption Price per share of the Common Stock payable to holders of the Offering Shares
exercising their Redemption Rights shall be equal to the quotient obtained by dividing (a) the aggregate amount on deposit in
the Trust Account as of two business days prior to the consummation of the initial Business Combination, including interest not previously
released to the Corporation to pay taxes by (b) the total number of then outstanding Offering Shares.
(c) If the Corporation offers to redeem the Offering
Shares in conjunction with a stockholder vote on an initial Business Combination pursuant to a proxy solicitation, a Public Stockholder,
together with any affiliate of such stockholder or any other person with whom such stockholder is acting in concert or as a “group”
(as defined under Section 13(d)(3) of the Exchange Act), shall be restricted from seeking Redemption Rights with respect to
more than an aggregate of 15% of the Offering Shares without the consent of the Corporation.
(d) In the event that the Corporation has not consummated
an initial Business Combination within 24 months from the closing of the Offering, the Corporation shall (i) cease all operations
except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter subject
to lawfully available funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable in cash, equal
to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account, including interest not previously
released to the Corporation to pay its taxes (less up to $100,000 of such net interest to pay dissolution expenses), by (B) the total
number of then outstanding Offering Shares, which redemption will completely extinguish rights of the Public Stockholders (including the
right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible
following such redemption, subject to the approval of the remaining stockholders and the Board in accordance with applicable law, dissolve
and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and other
requirements of applicable law.
(e) If the Corporation offers to redeem the Offering
Shares in conjunction with a stockholder vote on an initial Business Combination, the Corporation shall consummate the proposed initial
Business Combination only if (i) such initial Business Combination is approved by the affirmative vote of the holders of a majority
of the shares of the Common Stock that are voted at a stockholder meeting held to consider such initial Business Combination and (ii) the
Redemption Limitation is not exceeded.
(f) If the Corporation conducts a tender offer pursuant
to Section 9.2(b), the Corporation shall consummate the proposed initial Business Combination only if the Redemption
Limitation is not exceeded.
Section 9.3 Distributions from the
Trust Account.
(a) A Public Stockholder shall be entitled to
receive funds from the Trust Account only as provided in Sections
9.2(a), 9.2(b), 9.2(d) or 9.7 hereof. In no other circumstances shall a Public
Stockholder have any right or interest of any kind in or to distributions from the Trust Account, and no stockholder other than a
Public Stockholder shall have any interest in or to the Trust Account.
(b) Each Public Stockholder that does not exercise
its Redemption Rights shall retain its interest in the Corporation and shall be deemed to have given its consent to the release of the
remaining funds in the Trust Account to the Corporation, and following payment to any Public Stockholders exercising their Redemption
Rights, the remaining funds in the Trust Account shall be released to the Corporation.
(c) The exercise by a Public Stockholder of the Redemption
Rights shall be conditioned on such Public Stockholder following the specific procedures for redemptions set forth by the Corporation
in any applicable tender offer or proxy materials sent to the Public Stockholders relating to the proposed initial Business Combination.
Payment of the amounts necessary to satisfy the Redemption Rights properly exercised shall be made as promptly as practical after the
consummation of the initial Business Combination.
Section 9.4 Share Issuances. Prior
to the consummation of the Corporation’s initial Business Combination, the Corporation shall not issue any additional shares of
capital stock of the Corporation that would entitle the holders thereof to receive funds from the Trust Account or vote on any initial
Business Combination or on any amendment to this Article IX.
Section 9.5 Transactions with Affiliates.
In the event the Corporation enters into an initial Business Combination with a target business that is affiliated with the Sponsor, or
the directors or officers of the Corporation, the Corporation, or a committee of the independent directors of the Corporation, shall obtain
an opinion from an independent investment banking firm that is a member of the Financial Industry Regulatory Authority or an independent
accounting firm that such Business Combination is fair to the Corporation from a financial point of view.
Section 9.6 No Transactions with Other
Blank Check Companies. The Corporation shall not enter into an initial Business Combination with another blank check company or a
similar company with nominal operations.
Section 9.7 Additional Redemption Rights.
If, in accordance with Section 9.1(a), any amendment is made to Section 9.2(d) to modify the substance
or timing of the Corporation’s obligation to redeem (i) 100% of the Offering Shares if the Corporation has not consummated an initial
Business Combination within 24 months from the date of the closing of the Offering or (ii) with respect to any other provision relating
to stockholders’ rights or pre-initial Business Combination activity, the Public Stockholders shall be provided with the opportunity
to redeem their Offering Shares upon the approval of any such amendment, at a per-share price, payable in cash, equal to the aggregate
amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay its taxes, divided by
the number of then outstanding Offering Shares. The Corporation’s ability to provide such opportunity is subject to the Redemption
Limitation.
Section 9.8 Minimum Value of Target.
The Corporation’s initial Business Combination must occur with one or more target businesses that together have a fair market value
of at least 80% of the assets held in the Trust Account (excluding the deferred underwriting commissions and taxes payable on the income
earned on the Trust Account) at the time of the agreement to enter into the initial Business Combination.
ARTICLE X
CORPORATE OPPORTUNITY
Prior to the consummation of the Corporation’s
initial Business Combination, the doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to
the Corporation or any of its officers or directors in circumstances where the application of any such doctrine to a corporate opportunity
would conflict with any fiduciary duties or contractual obligations they may have as of the date of this Amended and Restated Certificate
or in the future, and the Corporation renounces any expectancy that any of the directors or officers of the Corporation will offer any
such corporate opportunity of which he or she may become aware to the Corporation. In addition to the foregoing, prior to the consummation
of the Corporation’s initial Business Combination, the doctrine of corporate opportunity shall not apply to any other corporate
opportunity with respect to any of the directors or officers of the Corporation unless such corporate opportunity is offered to such person
solely in his or her capacity as a director or officer of the Corporation and such opportunity is one the Corporation is legally and contractually
permitted to undertake and would otherwise be reasonable for the Corporation to pursue and the director or officer is permitted to refer
that opportunity to the Corporation without violating any legal obligation.
ARTICLE XI
AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any
time and from time to time to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate
(including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in
force that may be added or inserted, in the manner now or hereafter prescribed by this Amended and Restated Certificate and the
DGCL; and, except as set forth in Article VIII, all rights, preferences and privileges of whatever nature herein
conferred upon stockholders, directors or any other persons by and pursuant to this Amended and Restated Certificate in its present
form or as hereafter amended are granted subject to the right reserved in this Article XI; provided, however,
that Article IX of this Amended and Restated Certificate may be amended only as provided therein.
ARTICLE XII
EXCLUSIVE FORUM FOR CERTAIN LAWSUITS
Section 12.1 Forum. Unless the
Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the
sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on
behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee
of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation,
its directors, officers or employees arising pursuant to any provision of the DGCL or this Amended and Restated Certificate or the By-Laws,
or (iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine
and, if brought outside of Delaware, the stockholder bringing the suit will be deemed to have consented to service of process on such
stockholder’s counsel except any action (A) as to which the Court of Chancery in the State of Delaware determines that there is
an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal
jurisdiction of the Court of Chancery within ten days following such determination), (B) which is vested in the exclusive jurisdiction
of a court or forum other than the Court of Chancery, (C) for which the Court of Chancery does not have subject matter jurisdiction, or
(D) any action arising under the Securities Act of 1933, as amended, as to which the Court of Chancery and the federal district court
for the District of Delaware shall have concurrent jurisdiction. Notwithstanding the foregoing, the provisions of this Section 12.1 will
not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal courts
have exclusive jurisdiction.
Section 12.2 Consent to Jurisdiction.
If any action the subject matter of which is within the scope of Section 12.1 immediately above is filed in a court other than a
court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder
shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of Delaware
in connection with any action brought in any such court to enforce Section 12.1 immediately above (an “FSC Enforcement
Action”) and (ii) having service of process made upon such stockholder in any such FSC Enforcement Action by service
upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
ARTICLE XIII
SEVERABILITY
If any provision or provisions (or any part thereof)
of this Amended and Restated Certificate shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance
for any reason whatsoever, then, to the fullest extent permitted by law, (i) the validity, legality and enforceability of such provisions
in any other circumstance and of the remaining provisions of this Amended and Restated Certificate (including, without limitation, each
portion of any paragraph of this Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable
that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and
circumstances shall not in any way be affected or impaired thereby, and (ii) the provisions of this Amended and Restated Certificate (including,
without limitation, each portion of any paragraph of this Amended and Restated Certificate containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents
from personal liability in respect of their faith service or for the benefit of the Corporation to the fullest extent permitted by law.
[Signature page follows]
IN WITNESS WHEREOF, DiamondPeak Holdings Corp.
has caused this Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by an authorized officer
as of the date first set forth above.
| |
DiamondPeak Holdings Corp. |
| |
|
| |
By: |
/s/ David T. Hamamoto |
| |
Name: |
David T. Hamamoto |
| |
Title: |
Chief Executive Officer |
[Signature Page to Amended and Restated Certificate
of Incorporation]
Exhibit B
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant ☒ Filed by a Party other than the Registrant ☐
Check the appropriate box:
☐
Preliminary Proxy Statement
☐
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
☒
Definitive Proxy Statement
☐
Definitive Additional Materials
☐
Soliciting Material under §240.14a-12
DiamondPeak Holdings Corp.
(Name of Registrant as Specified in its Charter)
N/A
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
☐
No fee required.
☐
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1)
Title of each class of securities to which transaction applies:
(2)
Aggregate number of securities to which transaction applies:
(3)
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
(4)
Proposed maximum aggregate value of transaction:
(5)
Total fee paid:
☒
Fee paid previously with preliminary materials.
☐
Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
(1)
Amount Previously Paid:
(2)
Form, Schedule or Registration Statement No.:
(3)
Filing Party:
(4)
Date Filed:
(1)
Our estimate of the transaction value is based on the following estimated values: 75,918,054 shares of Class A common stock to be issued to Lordstown Stockholders and 2,949,802 shares of Class A common stock reserved for issuance upon the exercise of the options into which the Lordstown Vested Options convert, in each case in connection with the Business Combination, 3,235,500 shares of Class A common stock to be issued to the Convertible Promissory Noteholders, up to 764,550 shares of Class A common stock which may be issued in respect of additional Convertible Promissory Notes which may be issued prior to the closing (and which will be reflected throughout if they are so issued) and 1,649,180 shares issuable upon the exercise of the BGL Warrants.
PROXY STATEMENT FOR SPECIAL MEETING IN LIEU OF
THE 2020 ANNUAL MEETING OF STOCKHOLDERS
OF DIAMONDPEAK HOLDINGS CORP.
October 8, 2020
Dear Stockholders of DiamondPeak Holdings Corp.:
You are cordially invited to attend a special meeting in lieu of the 2020 annual meeting (the “special meeting”) of stockholders of DiamondPeak Holdings Corp. (“DiamondPeak,” “we,” “our” or “us”). At the special meeting, DiamondPeak stockholders will be asked to consider and vote on proposals to:
(1)
approve and adopt the Agreement and Plan of Merger, dated as of August 1, 2020 (as the same may be amended from time to time, the “Merger Agreement”), by and among DiamondPeak, DPL Merger Sub Corp. (“Merger Sub”), and Lordstown Motors Corp. (“Lordstown”), pursuant to which Merger Sub will merge with and into Lordstown (the “Merger”), with Lordstown surviving the Merger as a wholly-owned subsidiary of DiamondPeak, and approve the Merger and other transactions contemplated by the Merger Agreement (the “Business Combination” and such proposal, the “Business Combination Proposal”);
(2)
approve and adopt amendments to DiamondPeak’s amended and restated certificate of incorporation (the “Charter”) to be effective upon the consummation of the Business Combination (the “closing” and such proposal, the “Charter Proposal”), which will include amendments to (a) increase the number of authorized shares of DiamondPeak’s capital stock, par value $0.0001 per share, from 111,000,000 shares, consisting of (i) 110,000,000 shares of common stock, including 100,000,000 shares of Class A common stock (the “Class A common stock”) and 10,000,000 shares of Class B common stock (the “Class B common stock”), and (ii) 1,000,000 shares of preferred stock, to 312,000,000 shares, consisting of (i) 300,000,000 shares of Class A common stock and (ii) 12,000,000 shares of preferred stock, (b) eliminate certain provisions in our Charter relating to the Class B common stock, the initial business combination and other matters relating to DiamondPeak’s status as a blank check company that will no longer be applicable to us following the closing, and (c) approve and adopt any other changes contained in the Proposed Charter, a copy of which is attached as Annex E to this proxy statement. In addition, we will amend our Charter to change the name of the corporation to “Lordstown Motors Corp.”
(3)
approve, in connection with the Business Combination, for purposes of complying with applicable listing rules of the Nasdaq Capital Market (“Nasdaq”), the issuance of (a) up to an aggregate of 78,867,856 shares of Class A common stock to (i) Lordstown Stockholders at the closing and (ii) upon the exercise of the options into which the Lordstown Vested Options convert, in each case in connection with the Business Combination, (b) up to 50,000,000 shares of Class A common stock to certain qualified institutional buyers and accredited investors, at a price of $10.00 per share, for aggregate consideration of up to $500,000,000 for purposes of raising additional capital for use by the combined company following the closing and satisfying one of the conditions to the closing (the ‘‘PIPE Investment’’), (c) a number of shares of Class A common stock upon the conversion of Class B common stock in accordance with the terms of the Charter, (d) up to 4,000,000 shares of Class A common stock upon the conversion of certain convertible promissory notes of Lordstown in accordance with the terms thereof, and (e) certain redeemable warrants to Brown, Gibbons, Lang & Company Securities, Inc. (“BGL”) entitling BGL to purchase, in the aggregate, 1% of the issued and outstanding common stock of DiamondPeak as determined immediately after giving effect to the Business Combination and the PIPE Investment (such proposal, the “Nasdaq Proposal”);
(4)
elect, effective at the closing, nine directors to serve staggered terms on our board of directors as Class I, Class II and Class III directors, respectively (such proposal, the “Director Election Proposal”);
(5)
approve and adopt the 2020 Equity Incentive Plan and the material terms thereunder, (the “2020 Incentive Plan Proposal”); and
(6)
approve the adjournment of the special meeting to a later date or dates, if necessary or appropriate, to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of the Business Combination Proposal, the Charter
Proposal, the Nasdaq Proposal, the Director Election Proposal or the 2020 Incentive Plan Proposal (such proposal, the “Adjournment Proposal” and, together with the Business Combination Proposal, the Charter Proposal, the Nasdaq Proposal, the Director Election Proposal and the 2020 Incentive Plan Proposal, each, a “Proposal” and collectively, the “Proposals”).
Each of the Proposals is more fully described in the accompanying proxy statement, which each DiamondPeak stockholder is encouraged to review carefully.
DiamondPeak’s Class A common stock and warrants, which are exercisable for shares of Class A common stock under certain circumstances, are currently listed on Nasdaq under the symbols “DPHC” and “DPHCW”, respectively. Certain of our shares of Class A common stock and warrants currently trade as units consisting of one share of Class A common stock and one-third of one warrant, and are listed on Nasdaq under the symbol “DPHCU.” The units will automatically separate into the component securities upon the closing and, as a result, will no longer trade as a separate security. Upon the closing, we intend to change our name from “DiamondPeak Holdings Corp.” to “Lordstown Motors Corp.” and our Class A common stock and warrants will be listed following the closing under the symbols “RIDE” and “RIDEW”, respectively. We intend to apply to continue the listing of our Class A common stock and warrants on Nasdaq following the closing.
Pursuant to our Charter, we are providing the holders of shares of Class A common stock originally sold as part of the units issued in our initial public offering, which closed on March 4, 2019 (the “Initial Public Offering”) as well as in the subsequent sale of additional units in connection with the underwriters’ election to partially exercise their over-allotment option on March 18, 2019 (such shares, collectively, the “public shares,” and holders of public shares, the “public stockholders”), with the opportunity to redeem, upon the closing, all or a portion of the shares of Class A common stock then held by them, at a per share price, payable in cash, equal to (i) the aggregate amount then on deposit (as of two business days prior to the closing) in the trust account (the “Trust Account”) that holds the proceeds (including interest earned on the funds held in the Trust Account and not previously released to us to pay our taxes) from the Initial Public Offering, the partial exercise of the over-allotment option and a concurrent private placement of warrants to our sponsor, DiamondPeak Sponsor LLC (the “Sponsor”) and certain funds and accounts managed by subsidiaries of BlackRock, Inc. (collectively, the “anchor investor”), divided by (ii) the number of then-outstanding public shares, subject to the limitations described herein (the “pro rata portion”). The per share amount we will distribute to public stockholders who properly redeem their shares will not be reduced by the deferred underwriting commissions we will pay to the underwriters or another FINRA member. The founder shares, consisting of all of the outstanding shares of Class B common stock, will be excluded from the pro rata calculation used to determine the per share redemption price. As of June 30, 2020, the number of DiamondPeak’s outstanding public shares is 28,000,000. For illustrative purposes, based on the fair value of marketable securities held in the Trust Account as of June 30, 2020 of approximately $284.3 million, the estimated per share redemption price would have been approximately $10.15. Public stockholders may elect to redeem their public shares irrespective of whether they vote for or against the Business Combination Proposal. Notwithstanding the foregoing, a public stockholder, together with any affiliate of such stockholder or any other person with whom such stockholder is acting in concert or as a “group” (as defined under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), will be restricted from seeking redemption rights with respect to more than an aggregate of 15% of the public shares, which we refer to as the “15% threshold.” Accordingly, all public shares in excess of the 15% threshold beneficially owned by a public stockholder or group will not be redeemed for cash in connection with the completion of the Business Combination. Holders of DiamondPeak’s outstanding warrants sold in the Initial Public Offering (including the warrants sold as part of the units sold in connection with the underwriters’ election to partially exercise their over-allotment option), which are exercisable for shares of Class A common stock under certain circumstances, do not have redemption rights in connection with the Business Combination.
The Sponsor and our officers and directors have agreed to waive their redemption rights with respect to any shares of Class A common stock held by them in connection with the completion of the Business Combination. Shares of Class B common stock do not have redemption rights. As of the date of this proxy statement, the Sponsor and our officers and directors collectively own (i) 1,000,000 outstanding shares of Class A common stock and (ii) 6,187,500 outstanding shares of Class B common stock, representing, in the aggregate, approximately 20.5% of DiamondPeak’s outstanding shares of capital stock. The Sponsor and our officers and directors have agreed to vote any shares of Class A common stock and Class B common stock owned by them in favor of the Business Combination Proposal, and the Sponsor, our directors and officers have informed DiamondPeak that they intend to vote any shares of Class A common stock and Class B common stock owned by them in favor of all other Proposals.
DiamondPeak is providing this proxy statement and accompanying proxy card to its stockholders in connection with the solicitation of proxies to be voted at the special meeting and any adjournments or postponements thereof. Your vote is very important. Whether or not you plan to attend the special meeting, please submit your proxy card without delay.
We encourage you to read this proxy statement carefully. In particular, you should review the matters discussed under the caption “Risk Factors” beginning on page
38 of this proxy statement.
DiamondPeak’s board of directors recommends that DiamondPeak stockholders vote FOR each of the Proposals. When you consider the recommendation of our board of directors in favor of each of the Proposals, you should keep in mind that certain of DiamondPeak’s directors and officers have interests in the Business Combination that may be different than, or in addition to, or conflict with, your interests as a stockholder. See the section entitled “Proposal Number 1 — The Business Combination Proposal — Interests of Certain Persons in the Business Combination” for more information.
Approval of each of the Business Combination Proposal, the Nasdaq Proposal, the 2020 Incentive Plan Proposal and the Adjournment Proposal requires the affirmative vote (in person or by proxy) of the holders of a majority of the shares of Class A common stock and Class B common stock entitled to vote and actually cast thereon at the special meeting, voting as a single class. Approval of the Charter Proposal requires the affirmative vote (in person or by proxy) of the holders of a majority of the outstanding shares of Class A common stock and Class B common stock entitled to vote thereon at the special meeting, voting as a single class. Approval of the Election of Directors Proposal requires the affirmative vote (in person or by proxy) of the holders of a plurality of the outstanding shares of Class A common stock and Class B common stock entitled to vote and actually cast thereon at the special meeting, voting as a single class.
If you sign, date and return your proxy card without indicating how you wish to vote, your proxy will be voted FOR each of the Proposals presented at the special meeting. If you fail to return your proxy card or fail to submit your proxy by telephone or over the Internet, or fail to instruct your bank, broker or other nominee how to vote, and do not attend the special meeting, the effect will be that your shares will not be counted for purposes of determining whether a quorum is present at the special meeting and, if a quorum is present, will have no effect on the Business Combination Proposal, the Nasdaq Proposal, the Director Election Proposal, the 2020 Incentive Plan Proposal or the Adjournment Proposal, but will have the same effect as a vote AGAINST the Charter Proposal. If you are a stockholder of record and you attend the special meeting and wish to vote virtually, you may withdraw your proxy and vote virtually.
TO EXERCISE YOUR REDEMPTION RIGHTS, YOU MUST ELECT TO HAVE DIAMONDPEAK REDEEM YOUR SHARES AT A PER SHARE PRICE, PAYABLE IN CASH, EQUAL TO (I) THE AGGREGATE AMOUNT THEN ON DEPOSIT (AS OF TWO BUSINESS DAYS PRIOR TO THE CLOSING) IN THE TRUST ACCOUNT, DIVIDED BY (II) THE NUMBER OF THEN-OUTSTANDING PUBLIC SHARES, SUBJECT TO THE LIMITATIONS DESCRIBED HEREIN, AND YOU MUST TENDER YOUR SHARES TO DIAMONDPEAK’S TRANSFER AGENT AT LEAST TWO BUSINESS DAYS PRIOR TO THE VOTE AT THE SPECIAL MEETING. YOU MAY TENDER YOUR SHARES BY EITHER DELIVERING YOUR SHARE CERTIFICATE TO THE TRANSFER AGENT OR BY DELIVERING YOUR SHARES ELECTRONICALLY USING THE DEPOSITORY TRUST COMPANY’S DWAC (DEPOSIT/WITHDRAWAL AT CUSTODIAN) SYSTEM. IF THE BUSINESS COMBINATION IS NOT COMPLETED, THEN THESE SHARES WILL NOT BE REDEEMED FOR CASH. IF YOU HOLD THE SHARES IN STREET NAME, YOU WILL NEED TO INSTRUCT THE ACCOUNT EXECUTIVE AT YOUR BANK OR BROKER TO WITHDRAW THE SHARES FROM YOUR ACCOUNT IN ORDER TO EXERCISE YOUR REDEMPTION RIGHTS.
Thank you for your consideration of these matters.
Sincerely,
David Hamamoto
Chairman and Chief Executive Officer
DiamondPeak Holdings Corp.
Your vote is important regardless of the number of shares you own. Whether or not you plan to attend the special meeting of DiamondPeak stockholders, please submit your proxy by signing, dating and mailing the enclosed proxy card in the pre-addressed postage paid envelope or by using the telephone or Internet procedures provided to you by your broker or bank. If your shares are held in an account at a brokerage firm or bank, you must instruct your broker or bank on how to vote your shares to have your shares represented at the special meeting or, if you wish to attend the special meeting of DiamondPeak stockholders and vote virtually, you must obtain a proxy from your broker or bank.
Neither the Securities and Exchange Commission nor any state securities commission has passed upon the adequacy or accuracy of this proxy statement. Any representation to the contrary is a criminal offense.
This proxy statement is dated October 8, 2020 and is first being mailed to DiamondPeak stockholders on or about October 8, 2020.
DIAMONDPEAK HOLDINGS CORP.
40 W 57th Street, 29th Floor
New York, New York 10019
NOTICE OF SPECIAL MEETING IN LIEU OF THE 2020 ANNUAL MEETING OF STOCKHOLDERS
OF DIAMONDPEAK HOLDINGS CORP.
To Be Held On October 22, 2020
To the Stockholders of DiamondPeak Holdings Corp.:
NOTICE IS HEREBY GIVEN that a special meeting in lieu of the 2020 annual meeting (the “special meeting”) of stockholders of DiamondPeak Holdings Corp. (“DiamondPeak,” “we,” “our” or “us”) will be held at 10:00 a.m., Eastern time, on October 22, 2020, at https://web.lumiagm.com/288571647 for the following purposes:
1.
The Business Combination Proposal — To consider and vote upon a proposal to approve and adopt the Agreement and Plan of Merger, dated as of August 1, 2020 (as the same may be amended from time to time, the “Merger Agreement”), by and among DiamondPeak, DPL Merger Sub Corp. (“Merger Sub”) and Lordstown Motors Corp. (“Lordstown”), pursuant to which Merger Sub will merge with and into Lordstown, with Lordstown surviving the merger as a wholly-owned subsidiary of DiamondPeak, and approve the merger and other transactions contemplated by the Merger Agreement (the “Business Combination” and such proposal, the “Business Combination Proposal”);
2.
The Charter Proposal — To consider and vote upon a proposal to approve and adopt amendments to DiamondPeak’s amended and restated certificate of incorporation (the “Charter”) to be effective upon the consummation of the Business Combination (the “closing” and such proposal, the “Charter Proposal”), which will include amendments to (a) increase the number of authorized shares of DiamondPeak’s capital stock, par value $0.0001 per share, from 111,000,000 shares, consisting of (i) 110,000,000 shares of common stock, including 100,000,000 shares of Class A common stock (the “Class A common stock”) and 10,000,000 shares of Class B common stock (the “Class B common stock”), and (ii) 1,000,000 shares of preferred stock, to 312,000,000 shares, consisting of (1) 300,000,000 shares of Class A common stock and (2) 12,000,000 shares of preferred stock, (b) eliminate certain provisions in our Charter relating to the Class B common stock, the initial business combination and other matters relating to DiamondPeak’s status as a blank check company that will no longer be applicable to us following the closing, and (c) approve and adopt the other changes contained in the Proposed Charter, a copy of which is attached as Annex E to this proxy statement. In addition, we will amend our Charter to change the name of the corporation to “Lordstown Motors Corp.”
3.
The Nasdaq Proposal — To consider and vote upon a proposal to approve, in connection with the Business Combination, for purposes of complying with applicable listing rules of the Nasdaq Capital Market (“Nasdaq”), the issuance of (a) up to an aggregate of 78,867,856 shares of Class A common stock to (i) Lordstown Stockholders at the closing and (ii) upon the exercise of the options into which the Lordstown Vested Options convert, in each case in connection with the Business Combination, (b) up to 50,000,000 shares of Class A common stock to certain qualified institutional buyers and accredited investors, at a price of $10.00 per share, for aggregate consideration of up to $500,000,000 for purposes of raising additional capital for use by the combined company following the closing and satisfying one of the conditions to the closing (the ‘‘PIPE Investment’’), (c) a number of shares of Class A common stock upon the conversion of Class B common stock in accordance with the terms of our Charter, (d) up to 4,000,000 shares of Class A common stock upon the conversion of certain convertible promissory notes of Lordstown accordance with the terms thereof, and (e) certain redeemable warrants to Brown, Gibbons, Lang & Company Securities, Inc. (“BGL”) entitling BGL to purchase, in the aggregate, 1% of the issued and outstanding common stock of DiamondPeak as determined immediately after giving effect to the Business Combination and the PIPE Investment (such proposal, the “Nasdaq Proposal”);
4.
The Director Election Proposal — To consider and vote upon a proposal to elect, effective at the closing, nine directors to serve staggered terms on our board of directors as Class I, Class II and Class III directors, respectively (such proposal, the “Director Election Proposal”);
5.
The 2020 Incentive Plan Proposal — To consider and vote upon a proposal to approve and adopt the 2020 Equity Incentive Plan and the material terms thereunder (the “2020 Incentive Plan Proposal”); and
6.
The Adjournment Proposal — To consider and vote upon a proposal to approve the adjournment of the special meeting to a later date or dates, if necessary or appropriate, to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of the Business Combination Proposal, the Charter Proposal, the Nasdaq Proposal, the Director Election Proposal or the 2020 Incentive Plan Proposal (such proposal, the “Adjournment Proposal” and, together with the Business Combination Proposal, the Charter Proposal, the Nasdaq Proposal, the Director Election Proposal and the 2020 Incentive Plan Proposal, each, a “Proposal” and collectively, the “Proposals”).
Only holders of record of DiamondPeak’s Class A common stock and Class B common stock at the close of business on September 21, 2020 are entitled to notice of the special meeting and to vote at the special meeting and any adjournments or postponements thereof. A complete list of DiamondPeak’s stockholders of record entitled to vote at the special meeting will be available for 10 days before the special meeting at DiamondPeak’s principal executive offices for inspection by stockholders during ordinary business hours for any purpose germane to the special meeting.
Whether or not you plan to attend the special meeting, we urge you to read the proxy statement carefully.
Unless waived by the parties pursuant to the Merger Agreement, the closing is conditioned upon the approval of each of the Proposals, except the 2020 Incentive Plan Proposal.
Approval of each of the Business Combination Proposal, the Nasdaq Proposal, the 2020 Incentive Plan Proposal and the Adjournment Proposal requires the affirmative vote (in person or by proxy) of the holders of a majority of the shares of Class A common stock and Class B common stock entitled to vote and actually cast thereon at the special meeting, voting as a single class. Approval of the Charter Proposal requires the affirmative vote (in person or by proxy) of the holders of a majority of the outstanding shares of Class A common stock and Class B common stock entitled to vote thereon at the special meeting, voting as a single class. Approval of the Election of Directors Proposal requires the affirmative vote (in person or by proxy) of the holders of a plurality of the outstanding shares of Class A common stock and Class B common stock entitled to vote and actually cast thereon at the special meeting, voting as a single class.
Pursuant to our Charter, we are providing the holders of shares of Class A common stock originally sold as part of the units issued in our initial public offering, which closed on March 4, 2019 (the “Initial Public Offering”) as well as in the subsequent sale of additional units in connection with the underwriters’ election to partially exercise their over-allotment option on March 18, 2019 (such shares, collectively, the “public shares,” and holders of public shares, the “public stockholders”), with the opportunity to redeem, upon the closing, all or a portion of the shares of Class A common stock then held by them, at a per share price, payable in cash, equal to (i) the aggregate amount then on deposit (as of two business days prior to the closing) in the trust account (the “Trust Account”) that holds the proceeds (including interest earned on the funds held in the Trust Account and not previously released to us to pay our taxes) from the Initial Public Offering, the partial exercise of the over-allotment option and a concurrent private placement of warrants to our sponsor, DiamondPeak Sponsor LLC (the “Sponsor”) and certain funds and accounts managed by subsidiaries of BlackRock, Inc. (the “anchor investor”), divided by (ii) the number of then-outstanding public shares, subject to the limitations described herein. The per share amount we will distribute to public stockholders who properly redeem their shares will not be reduced by the deferred underwriting commissions we will pay to the underwriters or another FINRA member. The founder shares, consisting of all of the outstanding shares of Class B common stock, will be excluded from the pro rata calculation used to determine the per share redemption price. As of June 30, 2020, the number of DiamondPeak’s outstanding public shares is 28,000,000. For illustrative purposes, based on the fair value of marketable securities held in the Trust Account as of June 30, 2020 of approximately $284.3 million, the estimated per share redemption price would have been approximately $10.15. Public stockholders may elect to redeem their public shares irrespective of whether they vote for or against the Business Combination Proposal. Notwithstanding the foregoing, a public stockholder, together with any affiliate of such stockholder or any other person with whom such stockholder is acting in concert or as a “group” (as defined under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), will be restricted from seeking redemption rights with respect to more than an aggregate of 15% of the public shares, which we refer to as the “15% threshold.” Accordingly, all public shares in excess of the 15% threshold beneficially owned by a public stockholder or group will
not be redeemed for cash in connection with the completion of the Business Combination. Holders of DiamondPeak’s outstanding warrants sold in the Initial Public Offering (including the warrants sold as part of the units sold in connection with the underwriters’ election to partially exercise their over-allotment option), which are exercisable for shares of Class A common stock under certain circumstances, do not have redemption rights in connection with the Business Combination.
The Sponsor and our officers and directors have agreed to waive their redemption rights with respect to any shares of Class A common stock held by them in connection with the completion of the Business Combination. Shares of Class B common stock do not have redemption rights. As of the date of this proxy statement, the Sponsor and our officers and directors collectively own (i) 1,000,000 outstanding shares of Class A common stock and (ii) 6,187,500 outstanding shares of the Class B common stock, representing, in the aggregate, approximately 20.5% of DiamondPeak’s outstanding shares of capital stock. The Sponsor and our officers and directors have agreed to vote any shares of Class A common stock and Class B common stock owned by them in favor of the Business Combination Proposal, and the Sponsor, our directors and officers have informed DiamondPeak that they intend to vote any shares of Class A common stock and Class B common stock owned by them in favor of all other Proposals.
The special meeting will be completely virtual. There will be no physical meeting location and the special meeting will only be conducted via live webcast at the following address:
If you have any questions or need assistance voting your shares, please call our proxy solicitor, Mackenzie Partners, toll free at (800) 322-2885; banks and brokers call collect at (212) 929-5500.
Thank you for your participation. We look forward to your continued support.
By Order of the Board of Directors,
David Hamamoto
Chairman and Chief Executive Officer
October 8, 2020
Important Notice Regarding the Availability of Proxy Materials for the Special Meeting of Stockholders to be held on October 22, 2020: This notice of meeting and the related proxy statement will be available at http://www.diamondpeakspac.com.
TABLE OF CONTENTS
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F-1
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Annex A: Agreement and Plan Of Merger
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A-1 |
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Annex B: Form of Subscription Agreement
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B-1 |
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Annex C: Form of Support Agreement
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C-1 |
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Annex D: Form of Amended and Restated Registration Rights and Lockup Agreement
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D-1 |
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Annex E: Form of Second Amended and Restated Certificate of Incorporation of DiamondPeak Holdings Corp.
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E-1 |
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Annex F: Form of 2020 Equity Incentive Plan
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F-1 |
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CERTAIN DEFINED TERMS
Unless otherwise stated, or the context otherwise requires, in this proxy statement:
•
“anchor investor” means certain funds and accounts managed by subsidiaries of BlackRock, Inc.;
•
“BGL” means Brown, Gibbons, Lang & Company Securities, Inc.;
•
“BGL Warrants” means the redeemable warrants to be issued to BGL on the closing, entitling BGL to purchase, in the aggregate, 1% of the issued and outstanding common stock of DiamondPeak as determined immediately after giving effect to the Business Combination and the PIPE Investment;
•
“Business Combination” means the transactions contemplated by the Merger Agreement;
•
“Charter” means our Amended and Restated Certificate of Incorporation, as in effect prior to the closing;
•
“Class A common stock” means the Class A common stock, par value $0.0001 per share, of DiamondPeak;
•
“Class B common stock” means the Class B common stock, par value $0.0001 per share, of DiamondPeak;
•
“closing” means the consummation of the Business Combination;
•
“closing date” means the date on which the closing occurs;
•
“common stock” means, prior to the closing, Class A common stock and Class B common stock, collectively, and following the closing, Class A common stock;
•
“Convertible Promissory Notes” means the notes issued by Lordstown on August 10, 2020, September 9, 2020, and September 18, 2020 evidencing indebtedness of $32.4 million in the aggregate and the notes which may be issued by Lordstown prior to the closing evidencing indebtedness of an additional $7.6 million in the aggregate;
•
“DGCL” means the General Corporation Law of the State of Delaware;
•
“DiamondPeak,” the “Company,” “we,” “our” or “us” means DiamondPeak Holdings Corp., which will be renamed “Lordstown Motors Corp.” in connection with the closing; references in this proxy statement to the “Company,” “we,” “our” or “us” as it relates to matters following the closing means the combined company of DiamondPeak Holdings Corp. and Lordstown;
•
“DiamondPeak Stockholder Approval” means the approval by the holders of common stock at the special meeting of the Business Combination Proposal, the Charter Proposal, the NASDAQ Proposal, the Director Election Proposal and the Adjournment Proposal.
•
“Dechomai Asset Trust” means Dechomai Asset Trust, a Nevada not-for-profit trust formed in 2007 and as subsequently amended and restated;
•
“Exchange Act” means the Securities Exchange Act of 1934, as amended;
•
“founder shares” means shares of our Class B common stock initially purchased by our Sponsor and our anchor investor in a private placement prior to our Initial Public Offering, and the shares of our Class A common stock issued upon the conversion thereof as described herein;
•
“GAAP” means U.S. generally accepted accounting principles, consistently applied;
•
“GM” means GM EV Holdings LLC, General Motors LLC and their respective affiliates, as applicable;
•
“initial business combination” means our initial merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses;
•
“Initial Public Offering” means our initial public offering of units, which closed on March 4, 2019;
•
“Lordstown” means Lordstown Motors Corp, a Delaware corporation;
•
“Lordstown Common Stock” means the common stock of Lordstown, par value $0.0001 per share;
•
“Lordstown Endurance,” “The Endurance,” or “Endurance” means the Lordstown Endurance pickup truck;
•
“Lordstown Stockholders” means the holders of Lordstown Common Stock;
•
“Lordstown Option” means an option to purchase shares of Lordstown Common Stock;
•
“Lordstown Vested Options” means outstanding Lordstown Options which are vest on or before January 1, 2021;
•
“management” or our “management team” means officers and directors of DiamondPeak;
•
“Merger Agreement” means the Merger Agreement, dated as of August 1, 2020, by and among DiamondPeak, Merger Sub and Lordstown as may be amended from time to time;
•
“Merger Sub” means DPL Merger Sub Corp., a Delaware corporation and a wholly owned subsidiary of DiamondPeak;
•
“Nasdaq” means the Nasdaq Capital Market;
•
“Nasdaq Listing Rules” means the Listing Rules adopted by the Nasdaq Stock Market LLC, as the same may be amended from time to time;
•
“private placement warrants” means the warrants issued to our Sponsor and our anchor investor in a private placement simultaneously with the closing of our Initial Public Offering;
•
“Proposed Charter” means the proposed amended and restated certificate of incorporation of DiamondPeak, a form of which is attached hereto as Annex E, which will become the post-combination company’s certificate of incorporation upon the approval of the Charter Proposal, assuming the occurrence of the closing;
•
“public shares” means shares of our Class A common stock sold as part of the units in our Initial Public Offering (whether they were purchased in such offering or thereafter in the open market, and including the shares included as part of the additional units sold in connection with the underwriters’ election to partially exercise their over-allotment option);
•
“public stockholders” means the holders of our public shares;
•
“public warrants” means our redeemable warrants sold as part of the units in our Initial Public Offering (whether they were purchased in our initial public offering or thereafter in the open market) and any private placement warrants or warrants issued upon conversion of working capital loans in each case that are sold to third parties that are not initial purchasers or executive officers or directors (or permitted transferees) following the consummation of our initial business combination;
•
“Registration Rights and Lockup Agreement” means the Registration Rights and Lockup Agreement, dated August 1, 2020, to be effective as of the closing, by and among DiamondPeak, our Sponsor, anchor investor, GM, Stephen S. Burns, Workhorse Group and BGL;
•
“SEC” means the U.S. Securities and Exchange Commission;
•
“Securities Act” means the U.S. Securities Act of 1933, as amended;
•
“Silverpeak” means, unless the context requires otherwise, the broader Silverpeak platform of entities, which includes SP SPAC Sponsor LLC, Silverpeak Real Estate Partners L.P., Silverpeak Strategic Partners LLC, Silverpeak Credit Partners LP, Silverpeak Renewables Investment Partners LP and certain other entities affiliated or otherwise associated with the above-named entities; Principals of Silverpeak include Kaushik Amin, Brett Bossung and Mark A. Walsh;
•
“Sponsor” means DiamondPeak Sponsor LLC, a Delaware limited liability company; DHP SPAC Sponsor LLC, a Delaware limited liability company affiliated with David T. Hamamoto, our Chief Executive Officer and Chairman, and SP SPAC Sponsor LLC, a Delaware limited liability company affiliated with Silverpeak and one of our directors, Mark A. Walsh, are the managing members of our Sponsor;
•
“Subscription Agreements” means collectively the Subscription Agreements, each dated as of August 1, 2020, by and between DiamondPeak and each individual PIPE Investor;
•
“Support Agreements” means the Support Agreements, each dated August 1, 2020 by and between DiamondPeak and certain Lordstown Stockholders;
•
“Transactions” means the transactions contemplated by the Merger Agreement and the other Transaction Documents;
•
“Transaction Documents” means the Merger Agreement, the Support Agreements, the Registration Rights and Lockup Agreement and the Subscription Agreements;
•
“Trust Account” means the trust account that holds the proceeds (including interest earned on the funds held in the Trust Account and not previously released to us to pay our taxes) from DiamondPeak’s Initial Public Offering, the partial exercise of the over-allotment option and a concurrent private placement of warrants to the Sponsor and our anchor investor;
•
“units” means our units sold in our Initial Public Offering (including the units sold in connection with the underwriters’ election to partially exercise their over-allotment option), each of which consists of one share of Class A common stock and one-third of one public warrant; and
•
“Workhorse Group” means Workhorse Group Inc.
Unless otherwise specified, the equity interests of our stockholders set forth in this proxy statement assume the following:
•
no public stockholders elect to have their public shares redeemed;
•
at the closing, Lordstown Stockholders receive 75,918,054 shares of our Class A common Stock and the Lordstown Vested Options convert into options to receive 2,949,802 shares of our Class A common Stock;
•
no significant amount of cash consideration will be paid by DiamondPeak to Lordstown Stockholders and that, at the closing, all or substantially all of the Lordstown Common Stock will be exchanged for shares of Class A common stock pursuant to the Merger Agreement;
•
the transactions contemplated by each of the Subscription Agreements are consummated concurrently with the closing and the PIPE Investors purchase 50,000,000 shares of Class A common stock, in the aggregate;
•
at the closing, the Convertible Promissory Notes are converted into up to 4,000,000 shares of Class A common stock in the aggregate;
•
none of DiamondPeak’s existing stockholders or the parties to the Merger Agreement or Subscription Agreements, who will become stockholders of DiamondPeak at the closing, purchase shares of Class A common stock in the open market; and
•
there are no other issuances of equity interests of DiamondPeak prior to or in connection with the closing.
Further, unless otherwise specified the equity interests of DiamondPeak stockholders set forth in this proxy statement do not take into account the private placement warrants, public warrants, the BGL Warrants or the options to purchase certain shares of DiamondPeak’s Class A common stock converted from Lordstown Options pursuant to the Merger Agreement, which will remain outstanding following the Business Combination and may be exercised at a later date.
In accordance with our Charter, the Sponsor provided written consent to DiamondPeak that the shares of Class B common stock will automatically convert into shares of Class A common stock at the closing on a one-for-one basis, resulting in the issuance of 7,000,000 shares of Class A common stock in the aggregate, and not converted into a greater number of shares of Class A common stock with respect to the issuance of additional shares of Class A common stock or equity-linked securities related to the closing.
Certain sections in this proxy statement refer to a maximum redemption scenario. Unless otherwise specified, that scenario assumes for illustrative purposes that 27,000,000 shares of Class A common stock are redeemed in connection with the closing, resulting in an aggregate payment of approximately $274.2 million from the Trust Account. For more information, see the sections entitled “Unaudited Pro
Forma Condensed Consolidated Combined Financial Information of DiamondPeak” and “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement.”
This proxy statement contains registered and unregistered trademarks and service marks of Lordstown, as well as trademarks and service marks of third parties. Solely for convenience, these trademarks and service marks are referenced without the ®, ™ or similar symbols, but such references are not intended to indicate, in any way, that Lordstown will not assert, to the fullest extent under applicable law, its rights to these trademarks and service marks. All brand names, trademarks and service marks appearing in this proxy statement are the property of their respective holders.
QUESTIONS AND ANSWERS ABOUT THE PROPOSALS FOR DIAMONDPEAK STOCKHOLDERS
The following questions and answers briefly address some commonly asked questions about the proposals to be presented at the special meeting in lieu of the 2020 annual meeting (the “special meeting”) of stockholders of DiamondPeak, including the proposed business combination. The following questions and answers do not include all the information that is important to DiamondPeak stockholders. We urge DiamondPeak stockholders to read carefully this entire proxy statement, including the annexes and other documents referred to herein.
Q:
Why am I receiving this proxy statement?
A:
DiamondPeak stockholders are being asked to consider and vote upon, among other things, a proposal to approve and adopt the Merger Agreement, dated as of August 1, 2020, by and among DiamondPeak, Merger Sub and Lordstown, pursuant to which Merger Sub will merge with and into Lordstown, with Lordstown surviving the merger as a wholly-owned subsidiary of DiamondPeak, and approve the Business Combination Proposal. A copy of the Merger Agreement is attached to this proxy statement as Annex A. This proxy statement and its annexes contain important information about the proposed business combination and the other matters to be acted upon at the special meeting. You should read this proxy statement and its annexes carefully and in their entirety.
Approval of the Business Combination Proposal requires the affirmative vote of holders of a majority of the shares of Class A common stock and Class B common stock represented in person or by proxy and entitled to vote and actually cast thereon at the special meeting, voting as a single class. Your vote is important. You are encouraged to submit your proxy as soon as possible after carefully reviewing this proxy statement and its annexes.
Q:
When and where is the special meeting?
A:
The special meeting will be held at 10:00 a.m, Eastern time, on October 22, 2020, via live webcast at https://web.lumiagm.com/288571647. The special meeting will be completely virtual.
Q:
What is being voted on at the special meeting?
A:
Below are the proposals on which DiamondPeak stockholders will vote at the special meeting.
1.
The Business Combination Proposal — To consider and vote upon a proposal to approve and adopt the Merger Agreement and the Business Combination.
2.
The Charter Proposal — To consider and vote upon a proposal to approve and adopt amendments to our Charter, to be effective upon the closing, which will include amendments to (a) increase the number of authorized shares of DiamondPeak’s capital stock, par value $0.0001 per share, from 111,000,000 shares, consisting of (i) 110,000,000 shares of common stock, including 100,000,000 shares of Class A common stock and 10,000,000 shares of Class B common stock, and (ii) 1,000,000 shares of preferred stock, to 312,000,000 shares, consisting of (i) 300,000,000 shares of Class A common stock and (ii) 12,000,000 shares of preferred stock, (b) eliminate certain provisions in our Charter relating to DiamondPeak’s Class B common stock, the initial business combination and other matters relating to DiamondPeak’s status as a blank check company that will no longer be applicable to us following the closing, and (c) approve and adopt any other changes contained in the Proposed Charter, a copy of which is attached as Annex E to this proxy statement. In addition, we will amend our Charter to change the name of the corporation to “Lordstown Motors Corp.”
3.
The Nasdaq Proposal — To consider and vote upon a proposal to approve, in connection with the Business Combination, for purposes of complying with applicable listing rules of Nasdaq, (a) up to an aggregate of 78,867,856 shares of Class A common stock to (i) Lordstown Stockholders at the closing and (ii) upon the exercise of the options into which the Lordstown Vested Options convert, in each case in connection with the Business Combination, (b) the issuance of up to 50,000,000 shares of Class A common stock concurrent with the closing to the PIPE Investors, at a price of $10.00 per share, for aggregate consideration of up to $500,000,000 for purposes of raising additional capital for use by the combined company following the closing and satisfying one of the conditions to the closing, (c) the issuance of a number of shares of Class A common stock upon the conversion of Class B
common stock in accordance with the terms of our Charter, (d) the issuance of up to 4,000,000 shares of Class A common stock upon the conversion of the Convertible Promissory Notes in accordance with the terms thereof, and (e) the issuance of the BGL Warrants entitling BGL to purchase, in the aggregate, 1% of the issued and outstanding common stock of DiamondPeak as determined immediately after giving effect to the Business Combination and the PIPE Investment.
4.
The Director Election Proposal — To consider and vote upon a proposal to elect, effective at the closing, nine directors to serve staggered terms on our board of directors as Class I, Class II and Class III directors, respectively.
5.
The 2020 Incentive Plan Proposal — To consider and vote upon a proposal to approve and adopt the 2020 Equity Incentive Plan and the material terms thereunder.
6.
The Adjournment Proposal — To consider and vote upon a proposal to approve the adjournment of the special meeting to a later date or dates, if necessary or appropriate, to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of the Proposals.
Q:
Are the proposals conditioned on one another?
A:
The closing is conditioned on the approval of each of the Business Combination Proposal, the Charter Proposal, the Nasdaq Proposal, the Director Election Proposal and the Adjournment Proposal at the special meeting. Except for the 2020 Incentive Plan Proposal and the Adjournment Proposal, each Proposal is conditioned on the approval of each of the other Proposals. The approval of the 2020 Incentive Plan Proposal is conditioned on the approval of the Business Combination Proposal. The Adjournment Proposal is not conditioned on the approval of any other Proposals set forth in this proxy statement.
Q:
Who is Lordstown?
A:
Lordstown is an automotive company founded for the purpose of developing and manufacturing light duty electric trucks targeted for sale to fleet customers. Located in Lordstown, Ohio, Lordstown’s facility spans 6.2 million square feet and is in a near-production-ready state. Since inception, Lordstown has been developing its flagship vehicle, the Endurance, an electric full-size pickup truck. Lordstown has built an operational prototype and publicly introduced the Endurance in June 2020 and expects to complete the production of additional engineering and pre-production vehicles during the remainder of 2020 and early 2021. These vehicles will be used to test, validate and finalize the engineering and certifications before full-scale production begins. Lordstown is targeting commencement of commercial production of the Endurance and initial sales in the second half of 2021.
Q:
Why is DiamondPeak proposing the Business Combination?
A:
DiamondPeak was organized for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses.
Based on DiamondPeak’s due diligence investigations of Lordstown, the industries in which Lordstown operates, including the financial and other information provided by Lordstown in the course of DiamondPeak’s due diligence investigations, DiamondPeak’s board of directors believes that the Business Combination is in the best interests of DiamondPeak and its stockholders and presents an opportunity to increase stockholder value. However, there can be no assurances of this. Although DiamondPeak’s board of directors believes that the Business Combination presents a beneficial business combination opportunity and is in the best interests of DiamondPeak and its stockholders, the board of directors did consider certain potentially material negative factors in arriving at that conclusion. See the section entitled “Proposal Number 1 — The Business Combination Proposal — DiamondPeak’s Board of Directors’ Reasons for the Approval of the Business Combination” for more information.
Q:
Why is DiamondPeak providing stockholders with the opportunity to vote on the Business Combination?
A:
We are seeking approval of the Business Combination for purposes of complying with applicable Nasdaq Listing Rules requiring stockholder approval of issuances of more than 20% of a listed
company’s issued and outstanding common stock. In addition, pursuant to our Charter, we must provide all public stockholders with the opportunity to redeem all or a portion of their public shares upon the consummation of an initial business combination (as defined in our Charter) either in conjunction with a tender offer or in conjunction with a stockholder vote to approve such initial business combination. If we submit the proposed initial business combination to the stockholders for their approval, our Charter requires us to conduct such redemption in conjunction with the proxy solicitation (and not in conjunction with a tender offer) pursuant to the applicable SEC proxy solicitation rules.
Q:
Do Lordstown’s stockholders need to approve the Business Combination?
A:
Yes. In connection with the execution of the Merger Agreement, certain stockholders of Lordstown (the “Key Lordstown Stockholders”) entered into separate Support Agreements and provided written consents in the form attached thereto, each dated August 1, 2020, pursuant to which each of such Key Lordstown Stockholders agreed, among other things, to vote all of the shares of Lordstown Common Stock held by them in favor of any proposal for Lordstown stockholders to adopt the Merger Agreement and approving any other matters necessary for the closing. Additionally, the Key Lordstown Stockholders have agreed to, among other things, (i) subject to certain exceptions, refrain from transferring any of the shares of Lordstown Common Stock held by them within a period of time agreed by the parties and (ii) waive any appraisal rights (including under Section 262 of the DGCL) with respect to the merger and any rights to dissent with respect to the merger. Under the Merger Agreement, the obligation of DiamondPeak to consummate the Business Combination is subject to Support Agreements being executed and delivered by Lordstown Stockholders holding at least 95% of the Lordstown Common Stock issued and outstanding as of the date of the Merger Agreement and certified by the chief executive officer of Lordstown. As of the date of this proxy statement, Lordstown has obtained Support Agreements from Lordstown Stockholders holding approximately 93% of Lordstown Common Stock issued and outstanding as of the date of the Merger Agreement. For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — Support Agreement.”
Q:
What will happen in the Business Combination?
A:
Pursuant to the Merger Agreement, Merger Sub will merge with and into Lordstown, with Lordstown surviving such merger as a wholly-owned subsidiary of DiamondPeak. The total merger consideration is 78,867,856 shares of our Class A common stock which will be issued (i) at the Closing, to the Lordstown Stockholders (other than shares of Lordstown Common Stock that are held by dissenting stockholders or Non-Accredited Investors) and (ii) upon the exercise of the options into which the Lordstown Vested Options convert. Assuming that no public shareholders redeem their shares of our Class A common stock, 75,918,054 shares of our Class A common stock will be issued to the Lordstown Stockholders and 2,949,802 will be issued upon the exercise of the options into which the Lordstown Vested Options convert, in each case in connection with the Business Combination. Any issued and outstanding shares of Lordstown Common Stock held by Lordstown Stockholders that are Non-Accredited Investors will receive cash consideration pursuant to the Merger Agreement. In addition, DiamondPeak will issue up to 4,000,000 shares of our Class A common stock in satisfaction of the Lordstown Convertible Promissory Notes and also issue redeemable warrants to BGL, Lordstown’s financial advisor, to purchase, in the aggregate, 1% of the issued and outstanding common stock of DiamondPeak as determined immediately after giving effect to the Business Combination and the PIPE Investment. In connection with the closing, DiamondPeak will be renamed “Lordstown Motors Corp.”
For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal.”
Q:
What conditions must be satisfied to complete the Business Combination?
A:
The Merger Agreement contains a number of conditions in to consummating the Merger, including the approval by our stockholders of the Proposals. For a summary of the conditions that must be satisfied or waived prior to the closing, see the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — Conditions to Closing of the Business Combination.”
Q:
How will DiamondPeak be managed and governed following the Business Combination?
A:
DiamondPeak does not currently have any management-level employees other than David Hamamoto, our Chairman and Chief Executive Officer and Kyriakos Mihalitsis, our Chief Financial Officer. Following the closing, the Company’s executive officers are expected to be the current management team of Lordstown. See “Management Following the Business Combination” for more information.
DiamondPeak is, and after the closing will continue to be, managed by its board of directors. Following the closing, the size of our board of directors will be expanded from five directors to nine directors and will consist of (i) six directors nominated by Stephen S. Burns, (ii) one director nominated by Stephen S. Burns in consultation with DiamondPeak, (iii) one director nominated by DiamondPeak in consultation with Stephen S. Burns and (iv) one director nominated by DiamondPeak. Following the closing, we expect that all of the directors except for Stephen S. Burns will be independent under applicable Nasdaq Listing Rules. See the section entitled “Management Following the Business Combination” for more information.
Q:
Will DiamondPeak obtain new financing in connection with the Business Combination?
A:
In connection with its entry into the Merger Agreement, DiamondPeak entered into certain subscription agreements (the “Subscription Agreements”), each dated August 1, 2020, with the PIPE Investors, pursuant to which, among other things, DiamondPeak agreed to issue and sell in a private placement up to an aggregate of 50,000,000 shares of Class A common stock to the PIPE Investors, at a price of $10.00 per share, for aggregate consideration of up to $500,000,000 (the “PIPE Investment”). The purpose of the PIPE Investment is to raise additional capital for use by the combined company following the closing and satisfy one of the conditions to the closing.
Q:
What consideration will the Lordstown Stockholders receive in the Business Combination?
A:
Under the Merger Agreement, any Lordstown Stockholder that is an “Accredited Investor” (as defined in the Merger Agreement) will receive shares of Class A common stock as consideration in exchange for their shares of Lordstown Common Stock, and any Lordstown Stockholder that is not an Accredited Investor (“Non-Accredited Investor”) will receive cash consideration.
Under the Merger Agreement, Lordstown represented that to its knowledge, each Lordstown Stockholder is an “accredited investor” (as defined under Regulation D promulgated under the Securities Act), which we expect to be true and accurate. As a result, we expect that no cash consideration will be paid by DiamondPeak to any Lordstown Stockholders and that, at the closing, all or substantially all of the Lordstown Common Stock will be exchanged for shares of Class A common stock pursuant to the Merger Agreement.
Q:
Are there any arrangements to help ensure that DiamondPeak will have sufficient funds, together with the proceeds in its Trust Account, to fund the cash consideration to be paid to certain Lordstown Stockholders?
A:
Yes. In connection with its entry into the Merger Agreement, DiamondPeak entered into the Subscription Agreements, each dated as of August 1, 2020, with the PIPE Investors, pursuant to which, among other things, DiamondPeak agreed to issue and sell in a private placement up to an aggregate of 50,000,000 shares of Class A common stock to the PIPE Investors, at a price of $10.00 per share, for aggregate consideration of up to $500,000,000.
As, noted above, we expect that no cash consideration will be paid by DiamondPeak to any Lordstown Stockholders and that, at the closing, all or substantially all of the Lordstown Common Stock will be exchanged for shares of Class A common stock pursuant to the Merger Agreement.
Q:
What equity stake will current DiamondPeak stockholders, the holders of our Class B common stock, the PIPE Investors and Lordstown Stockholders hold in DiamondPeak following the closing?
A:
It is anticipated that, immediately following the closing and based on the assumptions set forth in “Certain Defined Terms,” the ownership of issued and outstanding shares of DiamondPeak will be as follows:
| |
|
|
Number of shares
of Class A
common stock(1)
|
|
|
% of all shares
of Class A
common stock
|
|
|
DiamondPeak Public Stockholders
|
|
|
|
|
23,750,000 |
|
|
|
|
|
14.4% |
|
|
|
The Sponsor
|
|
|
|
|
6,187,500 |
|
|
|
|
|
3.8% |
|
|
|
Our anchor investor(2)
|
|
|
|
|
5,062,500 |
|
|
|
|
|
3.1% |
|
|
|
David Hamamoto, DiamondPeak’s Chairman and Chief Executive
Officer(3)
|
|
|
|
|
1,000,000 |
|
|
|
|
|
* |
|
|
|
Lordstown Stockholders(1)
|
|
|
|
|
75,918,054 |
|
|
|
|
|
46.0% |
|
|
|
Convertible Promissory Noteholders
|
|
|
|
|
4,000,000 |
|
|
|
|
|
2.4% |
|
|
|
PIPE Investors(2)
|
|
|
|
|
50,000,000 |
|
|
|
|
|
30.3% |
|
|
*
Less than 1%
(1)
Excludes 2,949,802 shares of our Class A common stock issuable upon the exercise of the options into which the Lordstown Vested Options convert pursuant to the Business Combination.
(2)
Includes 1,000,000 shares of our Class A common stock that are to be issued pursuant to the PIPE Investment.
(3)
Excludes securities owned by the Sponsor that may be deemed to be beneficially owned by Mr. Hamamoto.
If the actual facts are different than the assumptions set forth in “Certain Defined Terms,” the ownership set forth above will be different. For example, if we assume that all outstanding 5,066,667 private placement warrants held by the Sponsor and our anchor investor, all outstanding 9,333,333 public warrants and all of the outstanding BGL Warrants were exercised following the closing, then the ownership of our Class A common stock would be as follows:
| |
|
|
Number of shares
of Class A
common stock(1)
|
|
|
% of all shares
of Class A
common stock
|
|
|
DiamondPeak Public Stockholders
|
|
|
|
|
31,666,666 |
|
|
|
|
|
17.2% |
|
|
|
The Sponsor
|
|
|
|
|
10,647,500 |
|
|
|
|
|
5.8% |
|
|
|
Our anchor investor(2)
|
|
|
|
|
6,752,500 |
|
|
|
|
|
3.7% |
|
|
|
David Hamamoto, DiamondPeak’s Chairman and Chief Executive
Officer(3)
|
|
|
|
|
1,333,333 |
|
|
|
|
|
* |
|
|
|
Lordstown Stockholders(1)
|
|
|
|
|
75,918,054 |
|
|
|
|
|
41.3% |
|
|
|
Convertible Promissory Noteholders
|
|
|
|
|
4,000,000 |
|
|
|
|
|
2.2% |
|
|
|
PIPE Investors(2)
|
|
|
|
|
50,000,000 |
|
|
|
|
|
27.2% |
|
|
*
Less than 1%
(1)
Excludes 2,949,802 shares of our Class A common stock issuable upon the exercise of the options into which the Lordstown Vested Options convert pursuant to the Business Combination.
(2)
Includes 1,000,000 shares of our Class A common stock that are to be issued pursuant to the PIPE Investment.
(3)
Excludes securities owned by the Sponsor that may be deemed to be beneficially owned by Mr. Hamamoto.
The warrants, other than the BGL Warrants, will become exercisable 30 days after the completion of an initial business combination and will expire five years after the completion of an initial business combination or earlier upon their redemption or liquidation. The BGL Warrants, will become exercisable 30 days after the completion of an initial business combination and will expire three years after the closing.
The Registration Rights and Lockup Agreement provides that certain securities of DiamondPeak held by certain of the Holders are to be locked-up as follows: (i) any shares of Class A common stock held by the Sponsor will be locked-up for one year following the closing, subject to certain exceptions based on the trading price of DiamondPeak’s Class A Common Stock, (ii) any shares of Class A common stock held by GM, Workhorse Group or BGL (which shares will account for 13.9% of all Class A common stock outstanding following the closing, assuming the full exercise of the public warrants, the private placement warrants and the BGL Warrants) will be locked-up for six months following the closing, (iii) any shares of Class A common stock held by Stephen S. Burns will be locked-up for one year following the closing, and 50% of the shares of Class A common stock held by Stephen S. Burns as of the date of the Registration Rights and Lockup Agreement will be locked-up for two years following the closing.
In addition, Stephen S. Burns agreed not to transfer any shares of Class A common stock held by him if, immediately following such transfer, the shares owned by him would be fewer than the number of shares that would be required to satisfy any outstanding indemnification claim made by DiamondPeak pursuant to the Merger Agreement. For additional information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — Indemnification.”
The lock-up restrictions provided in the Registration Rights and Lockup Agreement will not apply to our anchor investor, which will remain subject to the lockup provisions set forth in the subscription agreements entered by it with DiamondPeak in connection with the Initial Public Offering. For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — Registration Rights and Lockup Agreement. See the sections entitled “Summary of the Proxy Statement — Impact of the Business Combination on DiamondPeak’s Ownership” and “Unaudited Pro Forma Condensed Combined Financial Information of DiamondPeak” for more information with respect to ownership of DiamondPeak following the closing.
Q:
What amendments will be made to our Charter?
A:
DiamondPeak is asking its stockholders to approve and adopt amendments to our Charter, to be effective upon the closing, which will include amendments to (a) increase the number of authorized shares of DiamondPeak’s capital stock, par value $0.0001 per share, from 111,000,000 shares, consisting of (i) 110,000,000 shares of common stock, including 100,000,000 shares of Class A common stock and 10,000,000 shares of Class B common stock, and (ii) 1,000,000 shares of preferred stock, to 312,000,000 shares, consisting of (i) 300,000,000 shares of Class A common stock and (ii) 12,000,000 shares of preferred stock, (b) eliminate certain provisions in our Charter relating to DiamondPeak’s Class B common stock, the initial business combination and other matters relating to DiamondPeak’s status as a blank check company that will no longer be applicable to us following the closing, and (c) approve and adopt any other changes contained in the Proposed Charter, a copy of which is attached as Annex E to this proxy statement. In addition, we will amend our Charter to change the name of the corporation to “Lordstown Motors Corp.” Stockholder approval of the Charter Proposal is required under our Charter and is a condition to closing the Business Combination. See the section entitled “Proposal Number 2 — The Charter Proposal” for more information.
Q:
Why is DiamondPeak proposing the Nasdaq Proposal?
A:
DiamondPeak is proposing the Nasdaq Proposal in order to comply with Nasdaq Listing Rules, which require stockholder approval of certain transactions that result in the issuance of 20% or more of a company’s outstanding voting power or shares of common stock outstanding before the issuance of stock or securities. DiamondPeak will issue (a) up to an aggregate of 78,867,856 shares of Class A common stock to (i) Lordstown Stockholders at the closing and (ii) upon the exercise of the options into which the Lordstown Vested Options convert, in each case in connection with the Business
Combination, (b) up to 50,000,000 shares of Class A common stock to the PIPE Investors for aggregate consideration of up to $500,000,000 for purposes of raising additional capital for use by the combined company following the closing and satisfying one of the conditions to the closing, (c) a number of shares of Class A common stock upon the conversion of Class B common stock in accordance with the terms of the Charter, (d) up to 4,000,000 shares of Class A common stock upon the conversion of the Convertible Promissory Notes in accordance with the terms thereof, and (e) the BGL Warrants entitling BGL to purchase, in the aggregate, 1% of the issued and outstanding common stock of DiamondPeak as determined immediately after giving effect to the Business Combination and the PIPE Investment. Because DiamondPeak will issue 20% or more of its outstanding voting power and outstanding common stock in connection with the Business Combination, it is required to obtain stockholder approval of such issuances pursuant to Nasdaq Listing Rules.
Stockholder approval of the Nasdaq Proposal is also a condition to closing in the Merger Agreement. See the section entitled “Proposal Number 3 — The Nasdaq Proposal” for more information.
Q:
What happens if I sell my shares of Class A common stock before the special meeting?
A:
The record date for the special meeting is earlier than the date that the Business Combination is expected to be completed. If you transfer your shares of Class A common stock after the record date, but before the special meeting, unless the transferee obtains from you a proxy to vote those shares, you will retain your right to vote at the special meeting. However, you will not be able to seek redemption of your shares of Class A common stock because you will no longer be able to tender them prior to the special meeting in accordance with the provisions described herein. If you transferred your shares of Class A common stock prior to the record date, you have no right to vote those shares at the special meeting or redeem those shares for a pro rata portion of the proceeds held in the Trust Account.
Q:
How has the announcement of the Business Combination affected the trading price of DiamondPeak’s Class A common stock, warrants and units?
A:
On July 31, 2020, the last trading date before the public announcement of the Business Combination, DiamondPeak’s Class A common stock, warrants and units closed at $10.24, $2.34 and $11.15, respectively. On October 7, 2020, the trading date immediately prior to the filing of this preliminary proxy statement, DiamondPeak’s Class A common stock, warrants and units closed at $21.61, $8.10 and $24.50, respectively.
Q:
Following the Business Combination, will DiamondPeak’s securities continue to trade on a stock exchange?
A:
Yes. Upon the closing, we intend to change our name from “DiamondPeak Holdings Corp.” to “Lordstown Motors Corp.,” and our Class A common stock and warrants will be listed following the closing under the symbols “RIDE” and “RIDEW,” respectively. We intend to apply to continue the listing of our Class A common stock and warrants on Nasdaq following the closing. Our units will automatically separate into the component securities upon the closing and, as a result, will no longer trade as a separate security following the Business Combination.
Q:
What vote is required to approve the Proposals presented at the special meeting?
A:
Approval of the Business Combination Proposal, the Nasdaq Proposal, the 2020 Incentive Plan Proposal and the Adjournment Proposal requires the affirmative vote (in person or by proxy) of the holders of a majority of the shares of Class A common stock and Class B common stock entitled to vote and actually cast thereon at the special meeting, voting as a single class. Approval of the Charter Proposal requires the affirmative vote (in person or by proxy) of the holders of a majority of the outstanding shares of Class A common stock and Class B common stock entitled to vote thereon at the special meeting, voting as a single class. Approval of the Election of Directors Proposal requires the affirmative vote (in person or by proxy) of the holders of a plurality of the outstanding shares of Class A common stock and Class B common stock entitled to vote and actually cast thereon at the special meeting, voting as a single class.
Q:
May the Sponsor and our directors, officers and advisors or their respective affiliates purchase shares in connection with the Business Combination?
A:
In connection with the stockholder vote to approve the Business Combination, the Sponsor and our officers, directors or advisors or their respective affiliates may privately negotiate transactions to purchase shares from stockholders who would have otherwise elected to have their shares redeemed for a per share pro rata portion of the Trust Account. None of the Sponsor and our directors, officers or advisors or their respective affiliates will make any such purchases when they are in possession of any material non-public information not disclosed to the seller or during a restricted period under Regulation M under the Exchange Act. Such a purchase may include a contractual acknowledgement that such stockholder, although still the record holder of our shares as of the record date, is no longer the beneficial owner thereof and therefore agrees not to exercise its redemption rights. In the event that the Sponsor and our officers, directors or advisors or their affiliates purchase shares in privately negotiated transactions from public stockholders who have already elected to exercise their redemption rights, such selling stockholders would be required to revoke their prior elections to redeem their shares. Any such privately negotiated purchases may be effected at purchase prices that are below or in excess of the per share pro rata portion of the Trust Account.
The purpose of such purchases would likely be to vote such shares in favor of the Business Combination and thereby increase the likelihood of obtaining stockholder approval of the Business Combination. This may result in the completion of the Business Combination that may not otherwise have been possible.
In addition, if such purchases are made, the public “float” of our common stock may be reduced and the number of beneficial holders of our securities may be reduced, which may make it difficult to maintain or obtain the quotation, listing or trading of our securities on a national securities exchange.
If such transactions are effected, the consequence could be to cause the Business Combination to be approved in circumstances where such approval could not otherwise be obtained. Purchases of public shares by the persons described above would allow them to exert more influence over the approval of the Proposals to be presented at the special meeting and would likely increase the chances that such Proposals would be approved. As of the date of this proxy statement, there have been no such discussions and no agreements to such effect have been entered into with any such investor or holder.
Q:
How many votes do I have at the special meeting?
A:
DiamondPeak’s stockholders are entitled to one vote at the special meeting for each share of Class A common stock and one vote at the special meeting for each share of Class B common stock held of record as of September 21, 2020, the record date for the special meeting. As of the close of business on September 21, 2020, there were 28,000,000 outstanding shares of Class A common stock and 7,000,000 outstanding shares of Class B common stock.
Q:
What constitutes a quorum at the special meeting?
A:
Holders of a majority in voting power of Class A common stock and Class B common stock issued and outstanding and entitled to vote at the special meeting, present in person or represented by proxy, constitute a quorum.
Q:
What are the recommendations of DiamondPeak’s board of directors?
A:
After careful consideration, DiamondPeak’s board of directors recommends that DiamondPeak stockholders vote “FOR” each Proposal being submitted to a vote of the DiamondPeak stockholders at the special meeting. For more information regarding how the board of directors of DiamondPeak recommends that DiamondPeak stockholders vote, see the sections describing each Proposal in this proxy statement.
When you consider the recommendation of our board of directors in favor of approval of these Proposals, you should keep in mind that the Sponsor, our directors and officers have interests in the Business Combination that are different from, in addition to or conflict with your interests as a
stockholder. See the section entitled “Proposal Number 1 — The Business Combination Proposal — Interests of Certain Persons in the Business Combination.”
Q:
How will the Sponsor and DiamondPeak’s directors and officers vote?
A:
The Sponsor and our officers and directors have agreed to vote any shares of Class A common stock and Class B common stock owned by them in favor of the Business Combination Proposal, and the Sponsor and our directors and officers have informed DiamondPeak that they intend to vote any shares of Class A common stock and Class B common stock owned by them in favor of all other Proposals. As of the date of this proxy statement, the Sponsor and our officers and directors collectively own (i) 1,000,000 outstanding shares of Class A common stock and (ii) 6,187,500 outstanding shares of Class B common stock, representing, in the aggregate, approximately 20.5% of DiamondPeak’s outstanding shares of capital stock.
Q:
What interests do the Sponsor and our current officers and directors have in the Business Combination?
A:
In considering the recommendation of DiamondPeak’s board of directors to vote in favor of the Business Combination, stockholders should be aware that, aside from their interests as stockholders, the Sponsor and certain of our directors and officers have interests in the Business Combination that are different from, in addition to, or conflict with those of other stockholders generally. Our directors were aware of and considered these interests, among other matters, in evaluating the Business Combination and in recommending to stockholders that they approve the Business Combination. Stockholders should take these interests into account in deciding whether to approve the Business Combination. These interests include, among other things:
•
the fact that the Sponsor paid an aggregate of approximately $6,690,000 for an aggregate of 4,460,000 private placement warrants that would expire worthless if an initial business combination is not consummated by March 4, 2021;
•
the fact that the Sponsor and our officers and directors have agreed not to redeem any shares of Class A common stock held by them in connection with the completion of an initial business combination, which shares had an aggregate market value of approximately $21,610,000 based on the closing price of the Class A common stock of $21.61 on Nasdaq on October 7, 2020;
•
the fact that the Sponsor and our officers and directors have agreed not to redeem any founder shares held by them in connection with the completion of an initial business combination;
•
the fact that the Sponsor paid an aggregate of $25,000 for its founder shares and such securities will have a significantly higher value at the time of the Business Combination, which if unrestricted and freely tradable would be valued at approximately $133,711,875 based on the closing price of our Class A common stock of $21.61 on Nasdaq on October 7, 2020;
•
the fact that Judith A. Hannaway, Steven R. Hash, Andrew C. Richardson, our independent directors, will each be entitled to receive, upon completion of an initial business combination, 88,357 founder shares from our Sponsor, which would be valued in the aggregate at approximately $5,728,184 based on the closing price of our Class A common stock of $21.61 on Nasdaq on October 7, 2020;
•
the fact that the Sponsor and our officers and directors have waived their rights to liquidating distributions from the Trust Account with respect to any founder shares held by them if we fail to complete an initial business combination by March 4, 2021;
•
the fact that, in order to protect the amounts held in the Trust Account, the Sponsor has agreed to be liable to DiamondPeak if and to the extent any claims by a third party for services rendered or products sold to DiamondPeak, or a prospective target business with which DiamondPeak has discussed entering into a transaction agreement, reduce the amount of funds in the Trust Account to below (i) $10.00 per public share or (ii) such lesser amount per public share held in the Trust Account as of the date of the liquidation of the Trust Account due to reductions in the value of the trust assets, except with respect to any claims by a third party who executed a waiver of any and all rights to seek access to the Trust Account and except as to any claims under DiamondPeak’s
indemnity of the underwriters of the Initial Public Offering against certain liabilities, including liabilities under the Securities Act;
•
the anticipated continuation of David Hamamoto as a director of DiamondPeak following the closing;
•
the fact that Dechomai Asset Trust, a donor-advised fund which was funded by David Hamamoto, agreed to participate in the PIPE Investment and purchase $5,000,000 of Class A common stock in the aggregate at $10.00 per share on the terms set forth in the Subscription Agreements;
•
the fact that we agreed to pay our Sponsor a total of $10,000 per month for office space, utilities and secretarial and administrative support and such arrangement will terminate upon the closing;
•
the fact that our officers and directors have agreed not to become an officer or director of any other special purpose acquisition company with a class of securities registered under the Exchange Act, until we have entered into a definitive agreement regarding our initial business combination or we have failed to complete an initial business combination by March 4, 2021;
•
the fact that the Sponsor and our officers and directors will lose their entire investment in us with respect to the founder shares and warrants they own if an initial business combination is not completed by March 4, 2021;
•
the fact that we are a party to a registration rights agreement with the Sponsor, which provides for registration rights to such parties;
•
the fact that none of our Sponsor, officers and directors, or any of their respective affiliates is entitled to compensation of any kind, including finder’s and consulting fees, for services rendered prior to or in connection with the completion of an initial business combination (except for reimbursement for out-of-pocket expenses incurred in connection with activities on our behalf such as identifying potential target businesses and performing due diligence on suitable business combinations); and
•
the fact that we will continue to provide indemnification and insurance coverage to our directors and officers following the closing of the business combination.
Q:
What happens if I vote against the Business Combination Proposal?
A:
Under our Charter, if the Business Combination Proposal is not approved and the Business Combination is not consummated, and we do not otherwise consummate an alternative business combination by March 4, 2021, we will be required (unless an extension of such date is approved by affirmative vote of the holders of at least 65% of our outstanding common stock pursuant to our Charter), to dissolve and liquidate the Trust Account by returning the then-remaining funds in such account to our public stockholders.
Q:
Do I have redemption rights?
A:
If you are a holder of public shares, you may elect to have your public shares redeemed for cash at the applicable redemption price per share equal to the quotient obtained by dividing (a) the aggregate amount on deposit in the Trust Account as of two business days prior to the closing, including interest earned on the funds held in the Trust Account and not previously released to us to pay our taxes, by (b) the number of then- outstanding public shares; provided that DiamondPeak will not redeem any public shares to the extent that such redemption would result in DiamondPeak having net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) of less than $5,000,001.
Notwithstanding the foregoing, a public stockholder, together with any affiliate of such stockholder or any other person with whom such stockholder is acting in concert or as a “group” (as defined under Section 13(d)(3) of the Exchange Act), will be restricted from seeking redemption rights with respect to more than an aggregate of 15% of the public shares, which we refer to as the “15% threshold.” Accordingly, all public shares in excess of the 15% threshold beneficially owned by a public stockholder or group will not be redeemed for cash. There will be no redemption rights upon the completion of the Business Combination with respect to DiamondPeak’s warrants. Unlike some other blank check companies, other than the net tangible asset requirement and the 15% threshold described above,
DiamondPeak has no specified maximum redemption threshold and there is no other limit on the amount of public shares that you can redeem.
The Sponsor and our officers and directors have agreed to waive their redemption rights with respect to any shares of Class A common stock held by them in connection with the completion of the Business Combination. Shares of Class B common stock do not have redemption rights. The founder shares will be excluded from the pro rata calculation used to determine the per share redemption price. For illustrative purposes, based on the fair value of marketable securities held in the Trust Account as of June 30, 2020 of approximately $284.3 million, the estimated per share redemption price would have been approximately $10.15.
Additionally, shares properly tendered for redemption will only be redeemed if the Business Combination is consummated; otherwise holders of such shares will only be entitled to a pro rata portion of the Trust Account (including interest earned on the funds held in the Trust Account and not previously released to us to pay our taxes) in connection with the liquidation of the Trust Account or if we subsequently complete a different business combination on or prior to March 4, 2021.
Q:
Will how I vote affect my ability to exercise redemption rights?
A:
No. You may exercise your redemption rights whether you vote your shares of Class A common stock for or against or abstain from voting on the Business Combination Proposal or any other Proposal described in this proxy statement. As a result, the Business Combination can be approved by stockholders who will redeem their shares and no longer remain stockholders.
Q:
What happens if a substantial number of the public stockholders vote in favor of the Business Combination Proposal and exercise their redemption rights?
A:
As discussed above, our public stockholders may vote in favor of the Business Combination and also exercise their redemption rights. Accordingly, the Business Combination may be consummated even though the funds available from the Trust Account and the number of public stockholders are reduced as a result of redemptions of public shares by DiamondPeak’s public stockholders. However, the closing is conditioned upon, among other things, the Minimum Cash Condition described below. In addition, with fewer public shares and public stockholders, the trading market for our Class A common stock may be less liquid than the market for our Class A common stock was prior to the closing and we may not be able to continue to meet the listing standards for Nasdaq or another national securities exchange. In addition, with less funds available from the Trust Account, the working capital infusion from the Trust Account into the combined company’s business will be reduced.
Q:
How do I exercise my redemption rights?
A:
In order to exercise your redemption rights, you must (i) if you hold your shares of Class A common stock through units, elect to separate your units into the underlying public shares and public warrants prior to exercising your redemption rights with respect to the public shares, (ii) check the box on the enclosed proxy card marked “Stockholder Certification,” and (iii) prior to 5:00 p.m., Eastern Time, on October 20, 2020 (two business days before the special meeting), tender your shares physically or electronically and submit a request in writing that we redeem your public shares for cash to American Stock Transfer & Trust Company, LLC, our transfer agent, at the following address:
American Stock Transfer & Trust Company, LLC
6201 15th Avenue
Brooklyn, NY 11219
Attn: Relationship Management
Please check the box on the enclosed proxy card marked “Stockholder Certification” if you are not acting in concert or as a “group” with any other stockholder with respect to shares of Class A common stock or Class B common stock. Notwithstanding the foregoing, a holder of the public shares, together with any affiliate or any other person with whom he is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act), will be restricted from seeking redemption rights with respect to more than 15% of the public shares, which we refer to as the “15% threshold.” Accordingly,
all public shares in excess of the 15% threshold beneficially owned by a public stockholder or group will not be redeemed for cash. Stockholders seeking to exercise their redemption rights and opting to deliver physical certificates should allot sufficient time to obtain physical certificates from the transfer agent and time to effect delivery. It is DiamondPeak’s understanding that stockholders should generally allot at least two weeks to obtain physical certificates from the transfer agent. However, DiamondPeak does not have any control over this process and it may take longer than two weeks. Stockholders who hold their shares in street name will have to coordinate with their bank, broker or other nominee to have the shares certificated or delivered electronically.
Holders of outstanding units of DiamondPeak must separate the underlying public shares and public warrants prior to exercising redemption rights with respect to the public shares. If you hold units registered in your own name, you must deliver the certificate for such units to American Stock Transfer & Trust Company, LLC with written instructions to separate such units into public shares and public warrants. This must be completed far enough in advance to permit the mailing of the public share certificates back to you so that you may then exercise your redemption rights upon the separation of the public shares from the units.
If a broker, dealer, commercial bank, trust company or other nominee holds your units, you must instruct such nominee to separate your units. Your nominee must send written instructions by facsimile to American Stock Transfer & Trust Company, LLC. Such written instructions must include the number of units to be split and the nominee holding such units. Your nominee must also initiate electronically, using The Depository Trust Company’s (the “DTC”) DWAC (deposit/withdrawal at custodian) system, a withdrawal of the relevant units and a deposit of an equal number of public shares and public warrants. This must be completed far enough in advance to permit your nominee to exercise your redemption rights upon the separation of the public shares from the units. While this is typically done electronically on the same business day, you should allow at least one full business day to accomplish the separation. If you fail to cause your public shares to be separated in a timely manner, you will likely not be able to exercise your redemption rights.
Any demand for redemption, once made, may be withdrawn at any time until the deadline for exercising redemption requests and thereafter, with our consent, until the vote is taken with respect to the Business Combination. If you delivered your shares for redemption to the transfer agent and decide within the required time frame not to exercise your redemption rights, you may request that the transfer agent return the shares (physically or electronically). You may make such request by contacting our transfer agent at the phone number or address listed under the question “Who can help answer my questions?” below.
Q:
Did the board of directors of DiamondPeak obtain a third-party valuation or fairness opinion for purposes of determining whether or not to proceed with the Business Combination?
A:
No. DiamondPeak’s board of directors did not obtain a third-party valuation or fairness opinion in connection with or for purposes of determining whether or not to proceed with the Business Combination. DiamondPeak’s officers and directors have substantial experience in evaluating the operating and financial merits of businesses and concluded that their experience and backgrounds, together with the experience and backgrounds of their outside advisors, enabled them to make the necessary analyses and determinations regarding the Business Combination. Accordingly, investors will be relying on the judgment of DiamondPeak’s board of directors in valuing Lordstown and assuming the risk that DiamondPeak’s board of directors may not have properly valued such businesses.
Q:
What material positive factors did DiamondPeak’s board of directors consider in connection with the Business Combination?
A:
DiamondPeak’s board of directors considered a wide variety of factors in connection with its evaluation of the Business Combination. In reaching its decision to approve and adopt the Merger Agreement and the transactions contemplated by the Merger Agreement, DiamondPeak’s board of directors considered a number of material positive factors pertaining to the Business Combination, including Lordstown’s competitive and innovative vehicle design, its focus on the commercial fleet market and its facility ownership. These factors are discussed in greater detail in the section entitled “Proposal
Number 1 — The Business Combination Proposal — DiamondPeak’s Board of Directors’ Reasons for the Approval of the Business Combination.”
Q:
What material negative factors did DiamondPeak’s board of directors consider in connection with the Business Combination?
A:
Although DiamondPeak’s board of directors believes that the acquisition of Lordstown will provide DiamondPeak’s stockholders with an opportunity to participate in a combined company with significant growth potential, DiamondPeak’s board of directors did consider certain potentially material negative factors in arriving at that conclusion, including the risk that stockholders would not approve the Business Combination and the risk that a significant number of stockholders would exercise their redemption rights. These factors are discussed in greater detail in the section entitled “Proposal Number 1 — The Business Combination Proposal — DiamondPeak’s Board of Directors’ Reasons for the Approval of the Business Combination,” as well as in the section entitled “Risk Factors — Risks Relating to Lordstown’s Business.”
Q:
What are the U.S. federal income tax consequences of exercising my redemption rights?
A:
Whether the redemption is subject to U.S. federal income tax depends on your particular facts and circumstances. See the section entitled “Certain Federal Income Taxation Considerations.” We urge you to consult your tax advisors regarding the tax consequences of exercising your redemption rights.
Q:
If I am a warrant holder, can I exercise redemption rights with respect to my warrants?
A:
No. The holders of our warrants have no redemption rights with respect to our warrants.
Q:
If I am a holder of units, can I exercise redemption rights with respect to my units?
A:
No. Holders of outstanding units must elect to separate the units into the underlying public shares and public warrants prior to exercising redemption rights with respect to the public shares. If you hold your units in an account at a brokerage firm or bank, you must notify your broker or bank that you elect to separate the units into the underlying public shares and public warrants, or if you hold units registered in your own name, you must contact American Stock Transfer & Trust Company, LLC, DiamondPeak’s transfer agent, directly and instruct them to do so. If you fail to cause your units to be separated and delivered to American Stock Transfer & Trust Company, LLC, DiamondPeak’s transfer agent, by, you will not be able to exercise your redemption rights with respect to the public shares underlying such units.
Q:
Do I have appraisal rights if I object to the proposed business combination?
A:
No. There are no appraisal rights available to holders of Class A common stock or Class B common stock in connection with the Business Combination.
Q:
What happens to the funds deposited in the Trust Account after the closing?
A:
If the Proposals required for the Business Combination are approved, DiamondPeak intends to use a portion of the funds held in the Trust Account to pay (i) a portion of DiamondPeak’s aggregate costs, fees and expenses in connection with the closing, (i) tax obligations and deferred underwriting commissions from the Initial Public Offering, and (iii) for any redemptions of public shares and (iv) if required, a portion of the Cash Consideration payable to Non-Accredited Investors (if any) in connection with the Business Combination pursuant to the Merger Agreement. Any additional funds available for release from the Trust Account, together with proceeds received from the issuance of shares of Class A common stock pursuant to the Subscription Agreements, will be used for general corporate purposes of the combined company following the closing. See the section entitled “Proposal Number 1 — The Business Combination Proposal” for additional information.
Q:
What happens if the Business Combination is not consummated or is terminated?
A:
There are certain circumstances under which the Merger Agreement may be terminated. See the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — Termination” for additional information regarding the parties’ specific termination rights. In accordance
with our Charter, if an initial business combination is not consummated by March 4, 2021, DiamondPeak will be required to (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the public shares, at a per share price, payable in cash, equal to (a) the aggregate amount then on deposit in the Trust Account including interest earned on the funds held in the Trust Account and not previously released to us to pay our taxes (less up to $100,000 of interest to pay dissolution expenses), divided by (b) the number of then-outstanding public shares, which redemption will completely extinguish public stockholders’ rights as stockholders of DiamondPeak (including the right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of our remaining stockholders and our board of directors, dissolve and liquidate, subject in each case to our obligations under Delaware law to provide for claims of creditors and the requirements of other applicable law.
DiamondPeak expects that the amount of any distribution its public stockholders will be entitled to receive upon its dissolution will be approximately the same as the amount they would have received if they had redeemed their shares in connection with the Business Combination, subject in each case to DiamondPeak’s obligations under Delaware law to provide for claims of creditors and other requirements of applicable law. Holders of our founder shares have waived any right to any liquidating distributions with respect to those shares.
In the event of liquidation, there will be no distribution with respect to DiamondPeak’s outstanding warrants. Accordingly, the warrants will expire worthless if we fail to complete an initial business combination by March 4, 2021.
Q:
When is the Business Combination expected to be consummated?
A:
It is currently anticipated that the Business Combination will be completed in the fourth quarter of 2020, promptly following the special meeting of DiamondPeak stockholders to be held on October 22, 2020, provided that the DiamondPeak Stockholder Approval is obtained and other conditions to the closing have been satisfied or waived. For a description of the conditions for the closing, see the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — Conditions to the Closing of the Business Combination.”
Q:
What do I need to do now?
A:
You are urged to read carefully and consider the information contained in this proxy statement, including “Risk Factors” and the annexes, and to consider how the Business Combination will affect you as a stockholder. You should then vote as soon as possible in accordance with the instructions provided in this proxy statement and on the enclosed proxy card or, if you hold your shares through a brokerage firm, bank or other nominee, on the voting instruction form provided by the broker, bank or nominee.
Q:
How do I vote?
A:
If you were a holder of record of Class A common stock or Class B common stock on September 21, 2020, the record date for the special meeting of DiamondPeak stockholders, you may vote with respect to the Proposals in person at the special meeting or by completing signing, dating and returning the enclosed proxy card in the postage-paid envelope provided. If you hold your shares in “street name,” which means your shares are held of record by a broker, bank or other nominee, you should follow the instructions provided by your broker, bank or nominee to ensure that votes related to the shares you beneficially own are properly counted. In this regard, you must provide the record holder of your shares with instructions on how to vote your shares or, if you wish to attend the special meeting and vote virtually, obtain a proxy from your broker, bank or nominee.
Q:
Do I need to attend the special meeting of stockholders to vote my shares?
A:
No. You are invited to attend the special meeting to vote on the Proposals described in this proxy statement. However, you do not need to attend the special meeting of stockholders to vote your shares.
Instead, you may submit your proxy by signing, dating and returning the applicable enclosed proxy card(s) in the pre-addressed postage-paid envelope. Your vote is important. We encourage you to vote as soon as possible after carefully reading this proxy statement.
Q:
What will happen if I abstain from voting or fail to vote at the special meeting?
A:
At the special meeting, DiamondPeak will count a properly executed proxy marked “ABSTAIN” with respect to a particular proposal as present for purposes of determining whether a quorum is present. For purposes of approval, failure to vote or an abstention or a broker non-vote will have no effect on the Business Combination Proposal, the Nasdaq Proposal, the Director Election Proposal, the 2020 Incentive Plan Proposal or the Adjournment Proposal, but will have the same effect as a vote AGAINST the Charter Proposal.
Q:
What will happen if I sign and submit my proxy card without indicating how I wish to vote?
A:
Signed and dated proxies received by DiamondPeak without an indication of how the stockholder intends to vote on a proposal will be voted “FOR” each proposal presented to the stockholders.
Q:
If I am not going to attend the special meeting, should I submit my proxy card instead?
A:
Yes. Whether you plan to attend the special meeting or not, please read the enclosed proxy statement carefully, and vote your shares by signing, dating and returning the enclosed proxy card in the postage-paid envelope provided.
Q:
If my shares are held in “street name,” will my broker, bank or nominee automatically vote my shares for me?
A:
No. Under the rules of various national and regional securities exchanges, your broker, bank, or nominee cannot vote your shares with respect to non-discretionary matters unless you provide instructions on how to vote in accordance with the information and procedures provided to you by your broker, bank, or nominee. DiamondPeak believes the Proposals presented to the stockholders will be considered non-discretionary and therefore your broker, bank, or nominee cannot vote your shares without your instruction. Your bank, broker, or other nominee can vote your shares only if you provide instructions on how to vote. You should instruct your broker to vote your shares in accordance with directions you provide.
Q:
May I change my vote after I have submitted my executed proxy card?
A:
Yes. You may change your vote by sending a later-dated, signed proxy card to DiamondPeak’s secretary at the address listed below so that it is received by our secretary prior to the special meeting or attend the special meeting and vote virtually. You also may revoke your proxy by sending a notice of revocation to DiamondPeak’s secretary, which must be received prior to the special meeting.
Q:
What should I do if I receive more than one set of voting materials?
A:
You may receive more than one set of voting materials, including multiple copies of this proxy statement and multiple proxy cards or voting instruction cards.
For example, if you hold your shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. If you are a holder of record and your shares are registered in more than one name, you will receive more than one proxy card. Please complete, sign, date and return each proxy card and voting instruction card that you receive in order to cast your vote with respect to all of your shares.
Q:
Who will solicit and pay the cost of soliciting proxies?
A:
DiamondPeak will pay the cost of soliciting proxies for the special meeting. DiamondPeak has engaged Mackenzie Partners to assist in the solicitation of proxies for the special meeting. DiamondPeak has agreed to pay Mackenzie Partners a fee of $12,500 for its services plus the reimbursement of certain expenses. DiamondPeak will also reimburse banks, brokers and other custodians, nominees and fiduciaries representing beneficial owners of shares of Class A common stock and Class B common
stock for their expenses in forwarding soliciting materials to beneficial owners of Class A common stock and Class B common stock and in obtaining voting instructions from those owners. Our directors, officers and employees may also solicit proxies by telephone, by facsimile, by mail, on the Internet or in person. They will not be paid any additional amounts for soliciting proxies.
Q:
How can I communicate with the board of directors?
A:
Stockholders and other interested parties are invited to communicate with any of the independent directors, or the independent directors as a group, by writing to them at DiamondPeak Holdings Corp 40 W 57th Street, 29th Floor New York, New York 10019 Attention: Secretary.
Q:
Who can help answer my questions?
A:
If you have questions about the Proposals or if you need additional copies of the proxy statement or the enclosed proxy card you should contact:
DiamondPeak Holdings Corp.
40 W 57th Street, 29th Floor
New York, New York 10019
Attention: Secretary
You may also contact our proxy solicitor at:
Mackenzie Partners
1407 Broadway, 27th Floor
New York, NY 10018
Telephone: (800) 322-2885
(banks and brokers call collect at (212) 929-5500)
Email: proxy@mackenziepartners.com
To obtain timely delivery, our stockholders must request the materials no later than five business days prior to the special meeting.
You may also obtain additional information about DiamondPeak from documents filed with the SEC by following the instructions in the section entitled “Where You Can Find Additional Information.”
If you intend to seek redemption of your public shares, you will need to send a letter demanding redemption and deliver your stock (either physically or electronically) to our transfer agent at least two business days prior to the special meeting in accordance with the procedures detailed under the question “How do I exercise my redemption rights?” If you have questions regarding the certification of your position or delivery of your stock, please contact:
American Stock Transfer & Trust Company, LLC
6201 15th Avenue
Brooklyn, NY 11219
Attn: Relationship Management
SUMMARY OF THE PROXY STATEMENT
This summary highlights selected information from this proxy statement and does not contain all of the information that is important to you. To better understand the business combination and the Proposals to be considered at the special meeting, you should read this entire proxy statement carefully, including the annexes. See also the section entitled “Where You Can Find Additional Information.”
As discussed further herein, DiamondPeak expects to acquire Lordstown from Lordstown Stockholders pursuant to the Business Combination. In connection with the closing, we intend to change our name from “DiamondPeak Holdings Corp.” to “Lordstown Motors Corp.” Unless context otherwise requires, references in this section to the “Company,” “we,” “our” or “us” are to DiamondPeak Holdings Corp. as it relates to matters prior to the closing, and are to the combined company of DiamondPeak Holdings Corp. and Lordstown as it relates to matters following the closing.
Parties to the Business Combination
DiamondPeak Holdings Corp.
DiamondPeak Holdings Corp. is a blank check company formed under the laws of the State of Delaware on November 13, 2018 for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. We have neither engaged in any operations nor generated any revenues to date.
DiamondPeak’s Class A common stock and warrants, which are exercisable for shares of Class A common stock under certain circumstances, are currently listed on Nasdaq under the symbols “DPHC” and “DPHCW”, respectively. Some of our shares of Class A common stock and warrants currently trade as units consisting of one share of Class A common stock and one-third of one warrant, and are listed on Nasdaq under the symbol “DPHCU.” The units will automatically separate into the component securities upon the closing and, as a result, will no longer trade as a separate security. Upon the closing, we intend to change our name from “DiamondPeak Holdings Corp.” to “Lordstown Motors Corp.” and our Class A common stock and warrants will be listed following the closing under the symbols “RIDE” and “RIDEW”, respectively. We intend to apply to continue the listing of our Class A common stock and warrants on Nasdaq upon the closing.
The mailing address of DiamondPeak’s principal executive office is 40 W 57th Street, 29th Floor, New York, New York 10019.
For more information about DiamondPeak, see the sections entitled “Business of DiamondPeak” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations of DiamondPeak.”
Lordstown Motors Corp.
Lordstown is an automotive company founded for the purpose of developing and manufacturing light duty electric trucks targeted for sale to fleet customers. Located in Lordstown, Ohio, Lordstown’s facility spans 6.2 million square feet and is in a near-production-ready state. Since inception, Lordstown has been developing its flagship vehicle, the Endurance, an electric full-size pickup truck. Lordstown has built an operational prototype and publicly introduced the Endurance in June 2020 and expects to complete the production of additional engineering and pre-production vehicles during the remainder of 2020 and early 2021. These vehicles will be used to test, validate and finalize the engineering and certifications before full-scale production begins. Lordstown is targeting commencement of commercial production of the Endurance and initial sales in the second half of 2021.
The mailing address of Lordstown’s principal executive office is 2300 Hallock Young Road, Lordstown, Ohio 44481.
For more information about Lordstown, see the sections entitled “Business of Lordstown” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Lordstown.”
The Business Combination
On August 1, 2020, DiamondPeak, Merger Sub and Lordstown entered into the Merger Agreement, pursuant to which Merger Sub will merge with and into Lordstown, with Lordstown surviving the merger as the surviving corporation and becoming a wholly-owned subsidiary of DiamondPeak, on the terms and subject to the conditions set forth in the Merger Agreement. The merger will become effective at the time when the certificate of merger has been duly filed with and accepted by the Secretary of State of the State of Delaware or at such later date and time as may be agreed by the parties in writing and specified in the certificate of merger (such date and time, the “Effective Time”).
Pursuant to the Merger Agreement, at the Effective Time, by virtue of the merger and without any action on the part of the parties or any holder of Lordstown Common Stock, (i) each share of Lordstown Common Stock issued and outstanding at the Effective Time (other than shares of Lordstown Common Stock that are held by dissenting stockholders or Non-Accredited Investors) will be converted into, and become exchangeable for the number of shares of Class A common stock equal to the quotient obtained by dividing (A) the Purchase Price (as defined below) by (B) $10.00 by (C) the Fully Diluted Share Number (as defined below) (such number of shares of Class A common stock derived in clause (i), the “Stock Merger Consideration”), and (ii) each share of Lordstown Common Stock that is held by Non-Accredited Investors will be converted into, and become exchangeable for, the right to receive an amount in cash in dollars equal to the quotient obtained by dividing (A) the Purchase Price by (B) the Fully Diluted Share Number (such amount of cash derived in clause (ii), the “Cash Merger Consideration”). The Cash Merger Consideration or Stock Merger Consideration that a Lordstown Stockholder will be entitled to receive pursuant to the Merger Agreement is referred to as the “Merger Consideration”. Notwithstanding the foregoing, in the event that DiamondPeak, in its sole discretion, determines that any Lordstown Stockholder is an Accredited Investor despite such holder’s failure to deliver an investor questionnaire, then DiamondPeak may elect to treat such holder as an Accredited Investor for all purposes under the Merger Agreement. For purposes of the Merger Agreement, “Purchase Price” means the sum of (a) $783,400,000 plus (b) the aggregate exercise price of all Lordstown Options included in the calculation of Fully Diluted Share Number; and “Fully Diluted Share Number” means the sum of (a) the number of shares of Lordstown Common Stock issued and outstanding immediately before the closing, plus (b) the number of shares of Lordstown Common Stock subject to outstanding Lordstown Options which are vested as of the Effective Time or which vest on or before January 1, 2021.
Under the Merger Agreement, Lordstown represented that to its knowledge, each Lordstown Stockholder is an “accredited investor” (as defined under Regulation D promulgated under the Securities Act), which we expect to be true and accurate. As a result, we expect that no significant amount of Cash Merger Consideration will be paid by DiamondPeak to any Lordstown Stockholders and that, at the closing, all or substantially all of the Lordstown Common Stock will be exchanged for shares of Class A common stock pursuant to the Merger Agreement.
By virtue of the merger and without any action on the part of the parties or any holder of any capital stock of Lordstown, all of the shares of Lordstown Common Stock (other than dissenting shares) will represent the right to receive the Merger Consideration pursuant to the Merger Agreement, will cease to be outstanding, will be cancelled and will cease to exist as of the Effective Time, and each certificate formerly representing such shares will thereafter represent only the right to receive the Merger Consideration pursuant to the Merger Agreement.
Pursuant to our Charter, upon the closing, each outstanding share of Class B common stock will convert into one share of Class A common stock. Upon the closing, each Convertible Promissory Note will be automatically converted, in accordance with the terms thereof, into shares of Class A common stock at a price of $10.00 per share resulting in an issuance of up to 4,000,000 shares of Class A common stock in the aggregate.
Under the Merger Agreement, at the Effective Time, each outstanding Lordstown Option under the stock plans, whether vested or unvested, will automatically and without any required action on the part of the holder thereof, cease to represent an option to purchase shares of Lordstown Common Stock and will be converted into an option to purchase a number of shares of Class A common stock equal to the product (rounded down to the nearest whole number) of (x) the number of shares of Lordstown Common Stock
subject to such Lordstown Option immediately prior to the Effective Time and (y) the Merger Consideration, at an exercise price per share (rounded up to the nearest whole cent) equal to (A) the exercise price per share of Lordstown Common Stock of such Lordstown Option immediately prior to the Effective Time divided by (B) the Merger Consideration; provided, however, that the exercise price and the number of shares of Class A common stock purchasable pursuant to the Lordstown Options will be determined in a manner consistent with avoiding adverse taxation under Section 409A of the Internal Revenue Code of 1986 (the “Code”). Except as specifically provided in the Merger Agreement, following the Effective Time, each Lordstown Option will continue to be governed by the same terms and conditions (including vesting and exercisability terms) as were applicable to such Lordstown Option immediately prior to the Effective Time.
Concurrently with the closing, DiamondPeak will issue the BGL Warrants. For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — BGL Letter Agreement.”
For more information about the Merger Agreement, the Business Combination and the other transactions contemplated thereby, see the section entitled “Proposal Number 1 — The Business Combination Proposal.”
Conditions to the Closing
Conditions to Each Party’s Obligations
The obligations of each of Lordstown, DiamondPeak and Merger Sub to consummate the Business Combination are subject to the satisfaction or waiver at or prior to the closing of the following conditions; (i) the expiration or early termination of the waiting period (or any extension thereof) under the Hart-Scott-Rodino Act (the “HSR Act”); (ii) the absence of laws or orders restraining, enjoining, otherwise prohibiting or making illegal the closing or actions brought by governmental entities seeking to restrain or prohibit the closing and (iii) receipt of the DiamondPeak Stockholder Approval.
Additional Conditions to Lordstown’s Obligations
The obligation of Lordstown to consummate the Business Combination is also subject to the satisfaction or waiver in writing by Lordstown at or prior to the closing of the following conditions: (i) the representations and warranties of DiamondPeak must be true and correct as of the date of the Merger Agreement and as of the closing, subject to the materiality standards contained in the Merger Agreement; (ii) DiamondPeak must have performed and complied with its covenants, subject to the materiality standards contained in the Merger Agreement; (iii) Lordstown must have received from DiamondPeak a customary officer’s certificate, certifying as to the satisfaction of certain closing conditions; (iv) the shares of Class A common stock to be issued as the Merger Consideration must have been approved for listing on the Nasdaq, subject only to official notice of issuance; and (v) as of the closing, after the closing of the PIPE Investment and after distribution of the Trust Account, deducting all amounts to be paid pursuant to the redemption of public shares, DiamondPeak must have cash on hand equal to or in excess of $300 million (without, for the avoidance of doubt, taking into account any transaction expenses) (such condition set forth in clause (v), the “Minimum Cash Condition”).
Additional Conditions to DiamondPeak’s Obligations
The obligation of DiamondPeak to consummate the Business Combination is also subject to the satisfaction or waiver in writing by DiamondPeak at or prior to the closing of the following conditions: (i) the representations and warranties of Lordstown must be true and correct as of the date of the Merger Agreement and as of the closing, subject to the materiality standards contained in the Merger Agreement; (ii) Lordstown must have performed and complied with its covenants, subject to the materiality standards contained in the Merger Agreement; (iii) DiamondPeak must have received from Lordstown a customary officer’s certificate, certifying as to the satisfaction of certain closing conditions; (iv) no Material Adverse Effect (as defined in the Merger Agreement) has occurred since the date of the Merger Agreement; (v) all Transaction Documents must have been executed and remain in full force and effect; (vi) certain agreements involving Lordstown must be terminated and be of no further force or effect as of the Effective Time; (vii) certain Lordstown key employees must remain employed by Lordstown; (viii) Lordstown must have
provided copies of customary payoff letters in connection with the repayment of transaction expenses from applicable payees; (ix) certain key contracts of Lordstown must be in full force and effect; and (v) Support Agreements must have been executed and delivered by at least 95% of the holders of the Lordstown Common Stock issued and outstanding as of the date of the Merger Agreement.
For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — Conditions to the Closing of the Business Combination.”
Regulatory Matters
To complete the Business Combination, DiamondPeak and Lordstown Stockholders must obtain approvals or consents from, or make filings with certain U.S. federal authorities. The Business Combination is subject to the requirements of the HSR Act, which prevents DiamondPeak and Lordstown Stockholders from completing the Business Combination until required information and materials are furnished to the Antitrust Division of the Department of Justice (the “DOJ”) and the Federal Trade Commission (the “FTC”) and specified waiting period requirements have been satisfied.
On August 21, 2020, DiamondPeak and Stephen S. Burns each filed Premerger Notification and Reports Form under the HSR Act in respect of DiamondPeak’s acquisition of Lordstown and Mr. Burns’ acquisition of an ownership interest in DiamondPeak as a result of the Business Combination. On September 4, 2020, both DiamondPeak and Mr. Burns received notification of early termination of the applicable waiting period under the HSR Act.
For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Regulatory Matters.”
Termination Rights
The Merger Agreement may be terminated at any time prior to the closing:
•
by written agreement of DiamondPeak and Lordstown;
•
by either DiamondPeak or Lordstown, by giving written notice of such termination to the other party, if:
•
the closing has not occurred on or prior to February 1, 2021 (the “Outside Date”); provided, that such right to terminate the Merger Agreement will not be available to any party that has breached in any material respect its obligations under the Merger Agreement in any manner that proximately contributes to the failure of the closing to have occurred on or prior to the Outside Date;
•
any order permanently restraining, enjoining or otherwise prohibiting the consummation of the Transactions becomes final and non-appealable; provided, that such right to terminate the Merger Agreement will not be available to any party that has breached in any material respect its obligations under the Merger Agreement, including with respect to regulatory filings and approvals, in any manner that proximately contributes to such order becoming final and non-appealable; or
•
the DiamondPeak Stockholder Approval is not obtained at the special meeting or at any adjournment or postponement of the special meeting.
•
by Lordstown, if DiamondPeak has breached or failed to perform in any material respect any of its covenants or other agreements contained in the Merger Agreement, or any of its representations and warranties has become untrue after the date of the Merger Agreement, which breach or failure to perform or be true: (i) would give rise to the failure of a mutual closing condition or a condition of Lordstown’s obligations to consummate the Business Combination, and (ii) is not curable or, if curable, is not cured by the earlier of (A) thirty days after written notice thereof is given by Lordstown to DiamondPeak and (B) the Outside Date; provided, that Lordstown will not have such right to terminate the Merger Agreement if Lordstown is then in material breach of any of its representations,
warranties, covenants or other agreements such that it would give rise to the failure of a mutual closing condition or a condition of DiamondPeak’s obligations to consummate the Business Combination;
•
by Lordstown if DiamondPeak has made a Change in Recommendation (as defined in the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — Additional Agreements — DiamondPeak Stockholders’ Meeting; Lordstown Stockholders’ Support Agreements”); or
•
by DiamondPeak if Lordstown has breached or failed to perform in any material respect any of its covenants or other agreements contained in the Merger Agreement, or any of its representations and warranties has become untrue after the date of the Merger Agreement, which breach or failure to perform or be true (i) would give rise to the failure of a mutual closing condition or a condition of DiamondPeak’s obligations to consummate the Business Combination, respectively and (ii) is not curable or, if curable, is not cured by the earlier of (A) thirty days after written notice thereof is given by DiamondPeak to Lordstown and (B) the Outside Date; provided, that DiamondPeak will not have such termination right if DiamondPeak is then in breach of any of its representations, warranties, covenants or other agreements hereunder such that it would give rise to the failure of a mutual closing condition or a condition of Lordstown’s obligations to consummate the Business Combination;
In addition, DiamondPeak had the right to terminate the Merger Agreement at any time prior to the closing if the Initial Stockholder Consent (as defined in the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — DiamondPeak Stockholders’ Meeting; Lordstown Stockholders’ Support Agreements”) had not been obtained and certified by the chief executive officer of Lordstown within 24 hours following the execution of the Merger Agreement (such period of time, the “Stockholder Support Delivery Period”). Lordstown obtained the Initial Stockholder Consent on August 1, 2020 and subsequently delivered such certification, and DiamondPeak is therefore no longer entitled to such termination right.
None of the parties to the Merger Agreement is required to pay a termination fee or reimburse any other party for its expenses as a result of a termination of the Merger Agreement. For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — Termination.”
Related Agreements
Subscription Agreements. In connection with its entry into the Merger Agreement, DiamondPeak entered into separate Subscription Agreements, each dated as of August 1, 2020, with certain qualified institutional buyers and accredited investors, including GM (the “PIPE Investors”), pursuant to which, among other things, DiamondPeak agreed to issue and sell in a private placement up to an aggregate of 50,000,000 shares of Class A common stock to the PIPE Investors, for a purchase price of $10.00 per share, and aggregate consideration of up to $500,000,000 (the “PIPE Investment”). The applicable purchase price under the Subscription Agreements is payable in cash with respect to each of the PIPE Investors except that the purchase price payable by GM will consist of certain in-kind consideration and a cash payment in an amount equal to the difference between the purchase price applicable to GM and the value of such in-kind consideration.
The PIPE Investment is expected to close immediately prior to the closing of the merger on the closing date. The proceeds from the PIPE Investment will be used to provide additional capital to the combined company following the closing and to satisfy one of the conditions to the consummation of the Business Combination. The closing of the PIPE Investment is contingent upon, among other customary closing conditions, the satisfaction or waiver of all conditions precedent to the closing of the Business Combination set forth in the Merger Agreement and the substantially concurrent consummation of the Business Combination.
The Subscription Agreements also contain customary representations and warranties of DiamondPeak and the PIPE Investors.
The Subscription Agreements will terminate and be void and of no further force and effect upon the earliest to occur of (i) such date and time the Merger Agreement is terminated in accordance with its terms, (ii) upon mutual written agreement of the parties, (iii) the transactions contemplated by the Subscription Agreement are not consummated on the closing date as a result of any failure to satisfy or waive any conditions to closing as set forth in the Subscription Agreement, and (iv) April 1, 2021 if the Business Combination is not consummated by that date.
The shares of Class A common stock to be issued pursuant to the Subscription Agreements have not been registered under the Securities Act, and will be issued in reliance upon the exemption provided in Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — Subscription Agreements.”
Support Agreements. Following the execution of the Merger Agreement, the Key Lordstown Stockholders entered into certain separate support agreements (the “Support Agreement”) and provided written consents in the form attached thereto, each dated August 1, 2020, pursuant to which each of such Key Lordstown Stockholders agreed, among other things, to vote all of the shares of Lordstown Common Stock held by them in favor of any proposal for Lordstown stockholders to adopt the Merger Agreement and approving any other matters necessary for consummation of the transactions contemplated by the Merger Agreement. Additionally, the Key Lordstown Stockholders have agreed to, among other things, (i) subject to certain exceptions, refrain from transferring any of the shares of Lordstown Common Stock held by them within a period of time agreed by the parties and (ii) waive any appraisal rights (including under Section 262 of the DGCL) with respect to the merger and any rights to dissent with respect to the merger.
Under the Merger Agreement, the obligation of DiamondPeak to consummate the Business Combination is subject to Support Agreements being executed and delivered by Lordstown Stockholders holding at least 95% of the Lordstown Common Stock issued and outstanding as of the date of the Merger Agreement and certified by the chief executive officer of Lordstown. As of the date of this proxy statement, Lordstown has obtained Support Agreements from Lordstown Stockholders holding approximately 93% of Lordstown Common Stock issued and outstanding as of the date of the Merger Agreement.
For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — Support Agreements.”
Registration Rights and Lockup Agreement. Following the execution of the Merger Agreement, DiamondPeak entered into the Registration Rights and Lockup Agreement with our Sponsor, our anchor investor, GM, Stephen S. Burns, Workhorse Group and BGL (collectively, the “Holders”), dated August 1, 2020 and to be effective as of the Effective Time, pursuant to which DiamondPeak will have certain obligations to file a registration statement registering the resale of the Class A common stock (including those held as of the Effective Time or issuable upon future exercise of the private placement warrants or the BGL Warrants) and the private placement warrants held by the Holders (the “Registrable Securities”). The Registration Rights and Lockup Agreement will amend, restate and replace the registration rights agreement entered into by DiamondPeak with our Sponsor and our anchor investor on February 27, 2019.
Pursuant to the Registration Rights and Lockup Agreement, DiamondPeak is required to file a registration statement registering the resale of the Registrable Securities within 45 days after the closing. DiamondPeak is obligated to facilitate or participate in no more than two underwritten offerings for any Holder (and no more than four underwritten offerings for all Holders in the aggregate), and the reasonably expected aggregate gross proceeds from the each such underwritten offering must be at least $75 million.
The Registration Rights and Lockup Agreement provides that certain securities of DiamondPeak held by certain of the Holders are to be locked-up as follows: (i) any shares of Class A common stock held by the Sponsor will be locked-up for one year following the closing, subject to certain exceptions based on the trading price of DiamondPeak’s Class A Common Stock, (ii) any shares of Class A common stock held by GM, Workhorse Group or BGL (which shares will account for 13.9% of all Class A common stock outstanding following the closing, assuming the full exercise of the public warrants, the private placement warrants and the BGL Warrants) will be locked-up for six months following the closing, (iii) any shares of
Class A common stock held by Stephen S. Burns will be locked-up for one year following the closing, and 50% of the shares of Class A common stock held by Stephen S. Burns as of the date of the Registration Rights and Lockup Agreement will be locked-up for two years following the closing.
In addition, Stephen S. Burns agreed not to transfer any shares of Class A common stock held by him if, immediately following such transfer, the shares owned by him would be fewer than the number of shares that would be required to satisfy any outstanding indemnification claim made by DiamondPeak pursuant to the Merger Agreement. For additional information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — Indemnification.”
The lock-up restrictions provided in the Registration Rights and Lockup Agreement will not apply to our anchor investor, which will remain subject to the lockup provisions set forth in the subscription agreements entered by it with DiamondPeak in connection with the Initial Public Offering. For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — Registration Rights and Lockup Agreement.”
For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — Registration Rights and Lockup Agreement.”
Proposed Charter. Pursuant to the terms of the Merger Agreement, upon the closing DiamondPeak will amend and restate the Charter to (a) increase the number of authorized shares of DiamondPeak’s capital stock, par value $0.0001 per share, from 111,000,000 shares, consisting of (i) 110,000,000 shares of the Class A common stock and 10,000,000 shares of the Class B common stock, and (ii) 1,000,000 shares of preferred stock, to 312,000,000 shares, consisting of (i) 300,000,000 shares of Class A common stock and (ii) 12,000,000 shares of preferred stock, (b) eliminate certain provisions in our Charter relating to the Class B common stock, the initial business combination and other matters relating to DiamondPeak’s status as a blank check company that will no longer be applicable to us following the closing, and (c) approve and adopt any other changes contained in the Proposed Charter, a copy of which is attached as Annex E to this proxy statement. In addition, we will amend our Charter to change the name of the corporation to “Lordstown Motors Corp.”
For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — Proposed Charter.”
BGL Letter Agreement. On July 24, 2020, Lordstown entered into an engagement agreement with BGL (the “BGL Letter Agreement”) pursuant to which BGL was engaged to serve as a financial advisor to Lordstown in connection with the Business Combination and other related transactions. Among other things, Lordstown agreed that contemporaneously with the closing, DiamondPeak will issue the BGL Warrants entitling BGL to purchase, in the aggregate, 1% of the issued and outstanding common stock of DiamondPeak, as determined immediately after giving effect to the Business Combination and the PIPE Investment.
Prior to the closing, DiamondPeak and BGL intend to enter into a customary subscription agreement with respect to the BGL Warrants.
For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — BGL Letter Agreement.”
Confirmatory Agreements.
Various Lordstown Stockholders (the “Confirmatory Holders”) are the beneficiaries of anti-dilution protections pursuant to agreements between such Confirmatory Holders and Lordstown. Lordstown has entered into agreements (the “Confirmatory Agreements”) with substantially all such Confirmatory Holders, with such agreements providing (i) for the issuance of additional Lordstown Common Stock to the Confirmatory Holders prior to the closing in full satisfaction of their anti-dilution protections and (ii) that such protections terminate upon the closing. The total amount of Merger Consideration payable to the Lordstown Stockholders is fixed at 78,867,856 shares of our Class A common stock and will not be altered or adjusted in any respect by such anti-dilution protections or the Confirmatory Agreements.
Omnibus Agreement.
On August 1, 2020, Lordstown, GM and DiamondPeak entered into an omnibus agreement (the “Omnibus Agreement”) pursuant to which the parties agreed upon the treatment of certain arrangements between GM and Lordstown during the pendency of the Business Combination and upon the closing. Pursuant to the Omnibus Agreement, GM agreed that its repurchase option with respect to Lordstown’s facility in Lordstown, Ohio (the “Lordstown Complex”) will terminate upon the closing. GM further agreed that such repurchase option will not be exercisable by GM prior to the closing or the termination of the Merger Agreement unless (i) Lordstown is in material breach of an agreement with GM and (ii) Lordstown has not cured such breach within 30 days of receiving notice of the same, at which point GM will have the option, but not the obligation, to exercise such right (the satisfaction of the two foregoing conditions, a “GM Springing Event”). GM also agreed to terminate various investment related rights upon the closing.
Proposed Charter
Pursuant to the terms of the Merger Agreement, upon the closing DiamondPeak will amend and restate the Charter to (a) increase the number of authorized shares of DiamondPeak’s capital stock, par value $0.0001 per share, from 111,000,000 shares, consisting of (i) 110,000,000 shares of the Class A common stock and 10,000,000 shares of the Class B common stock, and (ii) 1,000,000 shares of preferred stock, to 312,000,000 shares, consisting of (i) 300,000,000 shares of Class A common stock and (ii) 12,000,000 shares of preferred stock, (b) eliminate certain provisions in our Charter relating to the Class B common stock, the initial business combination and other matters relating to DiamondPeak’s status as a blank check company that will no longer be applicable to us following the closing, and (c) approve and adopt any other changes contained in the Proposed Charter, a copy of which is attached as Annex E to this proxy statement. In addition, we will amend our Charter to change the name of the corporation to “Lordstown Motors Corp.”
For more information about the amendments to our Charter, see the section entitled “Proposal Number 2 — The Charter Proposal.”
Other Proposals
In addition to the Business Combination Proposal, DiamondPeak stockholders will be asked to vote on the Nasdaq Proposal, the Director Election Proposal, the 2020 Incentive Plan Proposal and the Adjournment Proposal. For more information about the Charter Proposal, the Nasdaq Proposal, the Director Election Proposal, the 2020 Incentive Plan Proposal and the Adjournment Proposal, see the sections entitled “Proposal Number 2 — The Charter Proposal,” “Proposal Number 3 — The Nasdaq Proposal,” “Proposal Number 4 — The Director Election Proposal,” “Proposal Number 5 — The 2020 Incentive Plan Proposal” and “Proposal Number 6 — The Adjournment Proposal.”
Appraisal Rights
Appraisal rights are not available to DiamondPeak stockholders in connection with the Business Combination.
Date, Time and Place of Special Meeting
The special meeting will be held at 10:00 a.m., Eastern time, on October 22, 2020, via live webcast at https://web.lumiagm.com/288571647 or such other date, time and place to which such meeting may be adjourned or postponed, to consider and vote upon the Proposals. The special meeting will be completely virtual.
Voting Power; Record Date
You will be entitled to vote or direct votes to be cast at the special meeting if you owned shares of Class A common stock or Class B common stock at the close of business on September 21, 2020, which is the record date for the special meeting. You are entitled to one vote for each share of Class A common stock or Class B common stock that you owned as of the close of business on the record date. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker, bank or other
nominee to ensure that votes related to the shares you beneficially own are properly counted. As of September 21, 2020, there are 35,000,000 shares of Class A common stock and Class B common stock outstanding in the aggregate, of which 28,000,000 are public shares and 7,000,000 are founder shares held by the Sponsor and our anchor investor.
Proxy Solicitation
Proxies may be solicited by mail. DiamondPeak has engaged Mackenzie Partners, Inc. to assist in the solicitation of proxies. If a stockholder grants a proxy, it may still vote its shares in person if it revokes its proxy before the special meeting. A stockholder may also change its vote by submitting a later-dated proxy as described in the section entitled “Special Meeting of DiamondPeak Stockholders — Revoking Your Proxy.”
Quorum and Required Vote for Proposals for the Special Meeting
A quorum of DiamondPeak stockholders is necessary to hold a valid meeting. Holders of a majority in voting power of Class A common stock and Class B common stock issued and outstanding and entitled to vote at the special meeting, present in person or represented by proxy, constitute a quorum. Abstentions will count as present for the purposes of establishing a quorum.
Approval of the Business Combination Proposal, the Nasdaq Proposal, and the Adjournment Proposal each requires the affirmative vote of holders of a majority of the shares of Class A common stock and Class B common stock represented in person or by proxy and entitled to vote thereon and actually cast at the special meeting, voting as a single class.
Approval of the Charter Proposal requires the affirmative vote of the holders of a majority of the shares of Class A common stock and Class B common stock represented in person or by proxy and entitled to vote thereon at the special meeting, voting as a single class.
Approval of the Director Election Proposal requires the affirmative vote of holders of a plurality of the shares of Class A common stock and Class B common stock represented in person or by proxy and entitled to vote thereon and actually cast at the special meeting, voting as a single class.
Accordingly, if a valid quorum is otherwise established, a stockholder’s failure to vote by proxy or in person at the special meeting, or an abstention or a broker non-vote, will have no effect on the outcome of any vote on the Business Combination Proposal, the Nasdaq Proposal, the Director Election Proposal or the Adjournment Proposal, but will have the same effect as a vote AGAINST the Charter Proposal.
Recommendation to DiamondPeak Stockholders
Our board of directors believes that each of the Business Combination Proposal, the Charter Proposal, the Nasdaq Proposal, the Director Election Proposal, the 2020 Incentive Plan Proposal and the Adjournment Proposal is in the best interests of DiamondPeak and its stockholders and recommends that its stockholders vote “FOR” each of the Proposals to be presented at the special meeting.
When you consider the recommendation of the board of directors in favor of approval of these Proposals, you should keep in mind that DiamondPeak’s Sponsor, our members of the board of directors and officers have interests in the Business Combination that are different from, in addition to, or conflict with, your interests as a stockholder. See the section entitled “Proposal Number 1 — The Business Combination Proposal — Interests of Certain Persons in the Business Combination.”
Risk Factors
In evaluating the Proposals set forth in this proxy statement, you should carefully read this proxy statement, including the annexes, and especially consider the factors discussed in the section entitled “Risk Factors.”
Interests of Certain Persons in the Business Combination
In considering the recommendation of our board of directors to vote in favor of the Business Combination, stockholders should be aware that, aside from their interests as stockholders, the Sponsor
and certain of our directors and officers have interests in the Business Combination that are different from, in addition to, or conflict with those of other stockholders generally. Our directors were aware of and considered these interests, among other matters, in evaluating the Business Combination, and in recommending to stockholders that they approve the Business Combination. Stockholders should take these interests into account in deciding whether to approve the Business Combination. These interests include, among other things:
•
the fact that the Sponsor paid an aggregate of approximately $6,690,000 for an aggregate of 4,460,000 private placement warrants that would expire worthless if an initial business combination is not consummated by March 4, 2021;
•
the fact that the Sponsor and our officers and directors have agreed not to redeem any shares of Class A common stock held by them in connection with the completion of an initial business combination, which shares had an aggregate market value of approximately $21,610,000 based on the closing price of the Class A common stock of $21.61 on Nasdaq on October 7, 2020;
•
the fact that the Sponsor and our officers and directors have agreed not to redeem any founder shares held by them in connection with the completion of an initial business combination;
•
the fact that the Sponsor paid an aggregate of $25,000 for its founder shares and such securities will have a significantly higher value at the time of the Business Combination, which if unrestricted and freely tradable would be valued at approximately $133,711,875 based on the closing price of our Class A common stock of $21.61 on Nasdaq on October 7, 2020;
•
the fact that Judith A. Hannaway, Steven R. Hash, Andrew C. Richardson, our independent directors, will each be entitled to receive, upon completion of an initial business combination, 88,357 founder shares from our Sponsor, which would be valued in the aggregate at approximately $5,728,184 based on the closing price of our Class A common stock of $23.40 on Nasdaq on October 7, 2020;
•
the fact that the Sponsor and our officers and directors have waived their rights to liquidating distributions from the Trust Account with respect to any founder shares held by them if we fail to complete an initial business combination by March 4, 2021;
•
the fact that, in order to protect the amounts held in the Trust Account, the Sponsor has agreed to be liable to DiamondPeak if and to the extent any claims by a third party for services rendered or products sold to DiamondPeak, or a prospective target business with which DiamondPeak has discussed entering into a transaction agreement, reduce the amount of funds in the Trust Account to below (i) $10.00 per public share or (ii) such lesser amount per public share held in the Trust Account as of the date of the liquidation of the Trust Account due to reductions in the value of the trust assets, except with respect to any claims by a third party who executed a waiver of any and all rights to seek access to the Trust Account and except as to any claims under DiamondPeak’s indemnity of the underwriters of the Initial Public Offering against certain liabilities, including liabilities under the Securities Act;
•
the anticipated continuation of David Hamamoto as director of DiamondPeak following the closing of the business combination;
•
the fact that Dechomai Asset Trust, a donor-advised fund which was funded by David Hamamoto, agreed to participate in the PIPE Investment and purchase $5,000,000 of Class A common stock in the aggregate at $10.00 per share on the terms set forth in the Subscription Agreements;
•
the fact that we agreed to pay our Sponsor a total of $10,000 per month for office space, utilities and secretarial and administrative support and such arrangement will terminate upon the closing;
•
the fact that our officers and directors have agreed not to become an officer or director of any other special purpose acquisition company with a class of securities registered under the Exchange Act, until we have entered into a definitive agreement regarding our initial business combination or we have failed to complete an initial business combination by March 4, 2021;
•
the fact that the Sponsor and our officers and directors will lose their entire investment in us with respect to the founder shares and warrants they own if an initial business combination is not completed by March 4, 2021;
•
the fact that we are a party to a registration rights agreement with the Sponsor and our anchor investor, which provides for registration rights to such parties;
•
the fact that none of our Sponsor, officers and directors, or any of their respective affiliates is entitled to compensation of any kind, including finder’s and consulting fees, for services rendered prior to or in connection with the completion of an initial business combination (except for reimbursement for out-of-pocket expenses incurred in connection with activities on our behalf such as identifying potential target businesses and performing due diligence on suitable business combinations); and
•
the fact that we will continue to provide indemnification and insurance coverage to our directors and officers following the closing of the business combination.
Reasons for the Approval of the Business Combination
After careful consideration, DiamondPeak’s board of directors recommends that DiamondPeak stockholders vote “FOR” each Proposal being submitted to a vote of the DiamondPeak stockholders at the DiamondPeak special meeting.
For a description of DiamondPeak’s reasons for the approval of the Business Combination and the recommendation of the DiamondPeak’s board of directors, see the section entitled “Proposal Number 1 — The Business Combination Proposal — DiamondPeak’s Board of Directors’ Reasons for the Approval of the Business Combination.”
Redemption Rights
Under our Charter, holders of our public shares may elect to have their shares redeemed for cash at the applicable redemption price per share equal to the quotient obtained by dividing (a) the aggregate amount on deposit in the Trust Account as of two business days prior to the closing, including interest earned on the funds held in the Trust Account and not previously released to us to pay our taxes, by (b) the number of then-outstanding public shares; provided that DiamondPeak will not redeem any public shares to the extent that such redemption would result in DiamondPeak having net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act of less than $5,000,001. As of June 30, 2020, this would have amounted to approximately $10.15 per share. Notwithstanding the foregoing, under our Charter, in connection with an initial business combination, a public stockholder, together with any affiliate or any other person with whom such stockholder is acting in concert of as a “group” (as defined under Section 13(d)(3) of the Exchange Act), is restricted from seeking redemption rights with respect to more than an aggregate of 15% of the public shares, which we refer to as the “15% threshold.” Accordingly, all public shares in excess of the 15% threshold beneficially owned by a public stockholder or group will not be redeemed for cash. There will be no redemption rights upon the completion of the Business Combination with respect to DiamondPeak’s warrants. However, we would not be restricting our stockholders’ ability to vote all of their shares (including the shares in excess of the 15% threshold) for or against the Business Combination. Each redemption of public shares by our public stockholders will decrease the amount in our Trust Account, which holds approximately $284.3 million as of June 30, 2020. In no event will we redeem public shares in an amount that would cause our net tangible assets to be less than $5,000,001 upon completion of the Business Combination.
If a holder exercises its redemption rights, then such holder will be exchanging its shares of Class A common stock for cash and will no longer own shares of Class A common stock and will not participate in the future growth of DiamondPeak, if any. Such a holder will be entitled to receive cash for its public shares only if it properly demands redemption and delivers its shares (either physically or electronically) to our transfer agent in accordance with the procedures described herein. See the section entitled “Special Meeting of Stockholders — Redemption Rights” for the procedures to be followed if you wish to redeem your shares for cash.
Impact of the Business Combination on DiamondPeak’s Ownership
It is anticipated that, immediately following the closing and based on the assumptions set forth in “Certain Defined Terms,” the ownership of issued and outstanding shares of DiamondPeak will be as follows:
| |
|
|
Number of shares
of Class A
common stock(1)
|
|
|
% of all shares
of Class A
common stock
|
|
|
DiamondPeak Public Stockholders
|
|
|
|
|
23,750,000 |
|
|
|
|
|
14.4% |
|
|
|
The Sponsor
|
|
|
|
|
6,187,500 |
|
|
|
|
|
3.8% |
|
|
|
Our anchor investor(2)
|
|
|
|
|
5,062,500 |
|
|
|
|
|
3.1% |
|
|
|
David Hamamoto, DiamondPeak’s Chairman and Chief Executive
Officer(3)
|
|
|
|
|
1,000,000 |
|
|
|
|
|
* |
|
|
|
Lordstown Stockholders(1)
|
|
|
|
|
75,918,054 |
|
|
|
|
|
46.0% |
|
|
|
Convertible Promissory Noteholders
|
|
|
|
|
4,000,000 |
|
|
|
|
|
2.4% |
|
|
|
PIPE Investors(2)
|
|
|
|
|
50,000,000 |
|
|
|
|
|
30.3% |
|
|
*
Less than 1%
(1)
Excludes 2,949,802 shares of our Class A common stock issuable upon the options into which the Lordstown Vested Options convert pursuant to the Business Combination.
(2)
Includes 1,000,000 shares of our Class A Common stock that are to be issued pursuant to the PIPE Investment.
(3)
Excludes securities owned by the Sponsor that may be deemed to be beneficially owned by Mr. Hamamoto.
If the actual facts are different than the assumptions set forth in “Certain Defined Terms,” the ownership set forth above will be different. For example, if we assume that all outstanding 5,066,667 private placement warrants held by the Sponsor and our anchor investor, all outstanding 9,333,333 public warrants and all of the outstanding BGL Warrants were exercised following the closing, then the ownership of our Class A common stock would be as follows:
| |
|
|
Number of shares
of Class A
common stock(1)
|
|
|
% of all shares
of Class A
common stock
|
|
|
DiamondPeak Public Stockholders
|
|
|
|
|
31,666,666 |
|
|
|
|
|
17.2% |
|
|
|
The Sponsor
|
|
|
|
|
10,647,500 |
|
|
|
|
|
5.8% |
|
|
|
Our anchor investor(2)
|
|
|
|
|
6,752,500 |
|
|
|
|
|
3.7% |
|
|
|
David Hamamoto, DiamondPeak’s Chairman and Chief Executive
Officer(3)
|
|
|
|
|
1,333,333 |
|
|
|
|
|
* |
|
|
|
Lordstown Stockholders(1)
|
|
|
|
|
75,918,054 |
|
|
|
|
|
41.3% |
|
|
|
Convertible Promissory Noteholders
|
|
|
|
|
4,000,000 |
|
|
|
|
|
2.2% |
|
|
|
PIPE Investors(2)
|
|
|
|
|
50,000,000 |
|
|
|
|
|
27.2% |
|
|
*
Less than 1%
(1)
Excludes 2,949,802 shares of our Class A common stock issuable upon the exercise of the options into which the Lordstown Vested Options convert pursuant to the Business Combination.
(2)
Includes 1,000,000 shares of our Class A Common stock that are to be issued pursuant to the PIPE Investment.
(3)
Excludes securities owned by the Sponsor that may be deemed to be beneficially owned by Mr. Hamamoto.
The warrants will become exercisable 30 days after the completion of an initial business combination and will expire five years after the completion of an initial business combination or earlier upon their redemption or liquidation.
The Registration Rights and Lockup Agreement provides that certain securities of DiamondPeak held by certain of the Holders are to be locked-up as follows: (i) any shares of Class A common stock held by the Sponsor will be locked-up for one year following the closing, subject to certain exceptions based on the trading price of DiamondPeak’s Class A Common Stock, (ii) any shares of Class A common stock held by GM, Workhorse Group or BGL (which shares will account for 13.9% of all Class A common stock outstanding following the closing, assuming the full exercise of the public warrants, the private placement warrants and the BGL Warrants) will be locked-up for six months following the closing, (iii) any shares of Class A common stock held by Stephen S. Burns will be locked-up for one year following the closing, and 50% of the shares of Class A common stock held by Stephen S. Burns as of the date of the Registration Rights and Lockup Agreement will be locked-up for two years following the closing.
In addition, Stephen S. Burns agreed not to transfer any shares of Class A common stock held by him if, immediately following such transfer, the shares owned by him would be fewer than the number of shares that would be required to satisfy any outstanding indemnification claim made by DiamondPeak pursuant to the Merger Agreement. For additional information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — Indemnification.”
The lock-up restrictions provided in the Registration Rights and Lockup Agreement will not apply to our anchor investor, which will remain subject to the lockup provisions set forth in the subscription agreements entered by it with DiamondPeak in connection with the Initial Public Offering. For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — Registration Rights and Lockup Agreement.”
See the section entitled “Unaudited Pro Forma Condensed Consolidated Combined Financial Information of DiamondPeak” for more information with respect to ownership of DiamondPeak following the closing.
Organizational Structure
Prior to the Business Combination
The following diagram illustrates the ownership structure of DiamondPeak prior to the Business Combination.
(1)
Includes founder shares held by our anchor investor, which will automatically convert into shares of Class A common stock on a one-for-one basis pursuant to our Charter upon the closing.
(2)
Includes founder shares held by our Sponsor and certain of our directors and officers, which will automatically convert into shares of Class A common stock on a one-for-one basis pursuant to our Charter upon the closing.
(3)
The equity interests set forth above do not account for private placement warrants or public warrants that will remain outstanding following the Business Combination and may be exercised at a later date.
Following the Business Combination
The diagram below illustrates the ownership structure of DiamondPeak immediately following the Business Combination. The equity interests assume the following:
•
no public stockholders elect to have their public shares redeemed;
•
at the closing, 75,918,054 shares of our Class A common stock will be issued to the Lordstown Stockholders and upon the exercise of the options which the Lordstown Vested Options will convert, into 2,949,802 shares of our Class A common stock will be issued, in each case pursuant to the Business Combination;
•
the transactions contemplated by each of the Subscription Agreements are consummated concurrently with the closing and the PIPE Investors purchase 50,000,000 shares of Class A common stock, in the aggregate;
•
none of DiamondPeak’s existing stockholders or the parties to the Merger Agreement or Subscription Agreements, who will become stockholders of DiamondPeak at the closing, purchase shares of Class A common stock in the open market; and
•
there are no other issuances of equity interests of DiamondPeak prior to or in connection with the closing.
(1)
Includes founder shares held by our anchor investor, which will automatically convert into shares of Class A common stock on a one-for-one basis pursuant to our Charter upon the closing.
(2)
Includes 1,000,000 shares of our Class A common stock that are to be issued pursuant to the PIPE Investment.
(3)
Includes founder shares held by our Sponsor and certain of our directors and officers, which will automatically convert into shares of Class A common stock on a one-for-one basis pursuant to our Charter upon the closing.
(4)
The equity interests set forth above do not account for the private placement warrants, public warrants, the BGL Warrants or the Lordstown Vested Options.
See the sections entitled “Summary of the Proxy Statement — Impact of the Business Combination on DiamondPeak’s Ownership” and “Unaudited Pro Forma Condensed Consolidated Combined Financial Information of DiamondPeak” for more information.
Board of Directors of DiamondPeak Following the Business Combination
Upon the closing, we anticipate expanding the size of our board of directors from five directors to nine directors. The initial nine directors following the closing will consist of: (i) six directors nominated by Stephen S. Burns, (ii) one director nominated by Stephen S. Burns in consultation with DiamondPeak, (ii) one director nominated by DiamondPeak in consultation with Stephen S. Burns and (iii) one director nominated by DiamondPeak. Following the closing, we expect that all of the directors except for Mr. Burns will be independent under applicable Nasdaq rules. Our board of directors is currently, and will remain following the closing, divided into three classes, Class I, Class II and Class III, pursuant to both the Charter and the Proposed Charter. See the section entitled “Management Following the Business Combination” for more information.
Accounting Treatment
The Business Combination will be accounted for as a reverse recapitalization for which Lordstown has been determined to be the accounting acquirer (the “Reverse Recapitalization”). As the Business Combination will be accounted for as a Reverse Recapitalization, no goodwill or other intangible assets will be recorded, in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”). Under this method of accounting, DiamondPeak will be treated as the “acquired” company for financial reporting purposes. Accordingly, for accounting purposes, the Reverse Recapitalization will be treated as the equivalent of Lordstown issuing stock for the net assets of DiamondPeak, accompanied by a recapitalization. The net assets of DiamondPeak will be stated at historical cost, with no goodwill or other intangible assets recorded. Operations prior to the Reverse Recapitalization will be those of Lordstown.
Litigation Relating to the Business Combination
On August 31, 2020, an action captioned Di Donato v. DiamondPeak Holdings Corp., et al. was filed in the Supreme Court of the State of New York, County of New York, against DiamondPeak and DiamondPeak's board of directors on behalf of a putative class of DiamondPeak stockholders (the “Di Donato Complaint”). The complaint alleges generally that members of DiamondPeak's board of directors breached their fiduciary duties in approving the Merger Agreement and challenges the adequacy or completeness of the initial version of the proxy statement filed on August 24, 2020. The Di Donato Complaint seeks, among other things, declarative relief, money damages and attorney's and expert fees and expenses. The Di Donato Complaint does not specify the amount of money damages and attorney’s and expert fees and expenses sought. No defendant has yet been served with the complaint in this action. DiamondPeak believes that this lawsuit was filed in violation of the exclusive forum provision in its Charter requiring any action asserting a claim of this sort to be filed in the state or federal courts in Delaware, and DiamondPeak believes that the claims otherwise lack merit. FASB ASC Topic 450, Contingencies, requires that DiamondPeak accrue for loss contingencies associated with outstanding litigation, claims and assessments for which management has determined it is probable that a loss contingency exists and the amount of loss can be reasonably estimated. DiamondPeak accrues loss contingencies based upon a range of possible outcomes. If no amount within this range is a better estimate than any other, then DiamondPeak accrues the minimum amount. DiamondPeak has evaluated the Di Donato Complaint to assess whether there is a reasonable possibility that a loss may be incurred and determined if accruals and related disclosures are appropriate. With respect to the Di Donato Complaint, DiamondPeak believes that the claims are without merit and does not believe that it is probable that a loss contingency exists. Further, DiamondPeak is unable to estimate the possible loss or range of loss, if any, associated with the claims, and, as a result, has not accrued any such losses.
Additional lawsuits arising out of the Business Combination or related transactions may be filed in the future. There can be no assurance that any of the defendants will be successful in the outcome of any pending or any potential future lawsuits. DiamondPeak believes that the pending Di Donato Complaint is without merit and DiamondPeak intends to defend vigorously against it. DiamondPeak and Lordstown also intend to defend vigorously against any other future lawsuits challenging the Business Combination.
SELECTED HISTORICAL FINANCIAL INFORMATION OF DIAMONDPEAK
The following table shows selected historical financial information of DiamondPeak for the periods and as of the dates indicated. The selected historical financial information of DiamondPeak as of December 31, 2019 and 2018 and for the years ended December 31, 2019 and 2018 was derived from the audited historical financial statements of DiamondPeak included elsewhere in this proxy statement. The selected historical interim financial information of DiamondPeak as of June 30, 2020 and for the six months ended June 30, 2020 and June 30, 2019 was derived from the unaudited interim financial statements of DiamondPeak included elsewhere in this proxy statement. The following table should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations of DiamondPeak” and our historical financial statements and the notes and schedules related thereto, included elsewhere in this proxy statement.
Statement of Operations Data:
| |
|
|
Six Months Ended June 30,
|
|
|
Years Ended December 31,
|
|
| |
|
|
2020
|
|
|
2019
|
|
|
2019
|
|
|
2018(1)
|
|
|
Revenue
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
General and administrative expenses
|
|
|
|
|
(646,883) |
|
|
|
|
|
(242,061) |
|
|
|
|
|
(618,608) |
|
|
|
|
|
(1,650) |
|
|
|
Loss from operations
|
|
|
|
$ |
(646,883) |
|
|
|
|
$ |
(242,061) |
|
|
|
|
$ |
(618,608) |
|
|
|
|
$ |
(1,650) |
|
|
|
Other income – interest earned on marketable securities held in Trust Account
|
|
|
|
|
1,033,199 |
|
|
|
|
|
2,008,496 |
|
|
|
|
|
4,547,860 |
|
|
|
|
|
— |
|
|
|
Income (loss) before provision for income taxes
|
|
|
|
$ |
386,316 |
|
|
|
|
$ |
1,766,435 |
|
|
|
|
$ |
3,929,252 |
|
|
|
|
$ |
(1,650) |
|
|
|
Provision for income taxes
|
|
|
|
|
(195,977) |
|
|
|
|
|
(400,784) |
|
|
|
|
|
(913,051) |
|
|
|
|
|
— |
|
|
|
Net income (loss)
|
|
|
|
$ |
190,339 |
|
|
|
|
$ |
1,365,651 |
|
|
|
|
$ |
3,016,201 |
|
|
|
|
$ |
(1,650) |
|
|
|
Weighted average shares outstanding of Class A redeemable common stock
|
|
|
|
|
28,000,000 |
|
|
|
|
|
27,644,068 |
|
|
|
|
|
27,860,927 |
|
|
|
|
|
— |
|
|
|
Basic and diluted net income per share, Class A
|
|
|
|
$ |
0.03 |
|
|
|
|
$ |
0.05 |
|
|
|
|
$ |
0.12 |
|
|
|
|
$ |
— |
|
|
|
Weighted average shares outstanding of Class B
non-redeemable common stock
|
|
|
|
|
7,000,000 |
|
|
|
|
|
7,000,000 |
|
|
|
|
|
7,000,000 |
|
|
|
|
|
6,250,000 |
|
|
|
Basic and diluted net loss per share, Class B
|
|
|
|
$ |
(0.08) |
|
|
|
|
$ |
(0.02) |
|
|
|
|
$ |
(0.06) |
|
|
|
|
$ |
(0.00) |
|
|
(1)
For the period from November 13, 2018 through December 31, 2018.
Balance Sheet Data:
| |
|
|
As of June 30,
2020
|
|
|
As of December 31,
|
|
| |
|
|
2019
|
|
|
2018(1)
|
|
|
Cash and cash equivalents
|
|
|
|
$ |
857,071 |
|
|
|
|
$ |
1,070,048 |
|
|
|
|
$ |
20,000 |
|
|
|
Total assets
|
|
|
|
|
285,275,830 |
|
|
|
|
|
284,801,982 |
|
|
|
|
|
120,000 |
|
|
|
Total liabilities
|
|
|
|
|
10,373,276 |
|
|
|
|
|
10,089,767 |
|
|
|
|
|
96,650 |
|
|
|
Total stockholders’ equity and Class A common shares subject to possible redemptions
|
|
|
|
|
274,902,554 |
|
|
|
|
|
274,712,215 |
|
|
|
|
|
23,350 |
|
|
(1)
For the period from November 13, 2018 through December 31, 2018.
SELECTED HISTORICAL FINANCIAL INFORMATION OF LORDSTOWN
The selected historical statement of operations data of Lordstown for the period ended December 31, 2019 and the historical balance sheet data as of December 31, 2019 are derived from Lordstown’s audited financial statements included elsewhere in this proxy statement. The selected historical condensed statements of operations data of Lordstown for the six months ended June 30, 2020 and 2019 and the condensed balance sheet data as of June 30, 2020 are derived from Lordstown’s unaudited interim condensed financial statements included elsewhere in this proxy statement. In Lordstown management’s opinion, the unaudited interim condensed financial statements include all adjustments necessary to state fairly Lordstown’s financial position as of June 30, 2020 and the results of operations for the six months ended June 30, 2020 and 2019. Lordstown’s historical results are not necessarily indicative of the results that may be expected in the future and Lordstown’s results for the six months ended June 30, 2020 are not necessarily indicative of the results that may be expected for the full year ending December 31, 2020 or any other period. You should read the following selected historical financial data together with “Lordstown’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Lordstown’s financial statements and related notes included elsewhere in this proxy statement.
Statement of Operations Data
| |
|
|
For The Six
Months Ended
June 30, 2020
|
|
|
For The
Period From
April 30, 2019
to June 30,
2019
|
|
|
For The
Period From
April 30, 2019
to December 31,
2019
|
|
|
Revenue
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
Selling and administrative expenses
|
|
|
|
|
8,677,026 |
|
|
|
|
|
— |
|
|
|
|
|
4,525,745 |
|
|
|
Research and development expenses
|
|
|
|
|
13,254,225 |
|
|
|
|
|
— |
|
|
|
|
|
5,864,769 |
|
|
|
Total operating expenses
|
|
|
|
|
21,931,251 |
|
|
|
|
|
— |
|
|
|
|
|
10,390,514 |
|
|
|
Gain on sale of assets
|
|
|
|
|
2,345,996 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Loss from operations
|
|
|
|
|
(19,585,255) |
|
|
|
|
|
— |
|
|
|
|
|
(10,390,514) |
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income
|
|
|
|
|
125,946 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Interest expense
|
|
|
|
|
(362,018) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Net Loss
|
|
|
|
$ |
(19,821,327
)
|
|
|
|
|
$ |
— |
|
|
|
|
$
|
(10,390,514)
|
|
|
|
Net loss attributable to common shareholders
|
|
|
|
$ |
(19,821,327
)
|
|
|
|
|
$ |
— |
|
|
|
|
$
|
(10,390,514)
|
|
|
|
Weighted average number of common shares outstanding
|
|
|
|
|
1,293,660 |
|
|
|
|
|
— |
|
|
|
|
|
1,064,150 |
|
|
|
Loss per share attributable to common shareholders –
Basic and Diluted
|
|
|
|
$ |
(15.32) |
|
|
|
|
$ |
— |
|
|
|
|
$ |
(9.76) |
|
|
Balance Sheet Data
| |
|
|
June 30,
2020
|
|
|
December 31,
2019
|
|
|
Total assets
|
|
|
|
$ |
33,541,002 |
|
|
|
|
$ |
33,546,046 |
|
|
|
Total liabilities
|
|
|
|
|
37,095,240 |
|
|
|
|
|
24,989,747 |
|
|
|
Total stockholders’ (deficit) equity
|
|
|
|
|
(3,554,238) |
|
|
|
|
|
8,556,299 |
|
|
SELECTED UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION OF DIAMONDPEAK
The following summary unaudited pro forma condensed combined financial information (the “Summary Pro Forma Information”) gives effect to the Business Combination. The Business Combination will be accounted for as a reverse recapitalization in accordance with GAAP. Under this method of accounting, DiamondPeak will be treated as the “acquired” company for financial reporting purposes. Accordingly, the Business Combination will be reflected as the equivalent of Lordstown issuing stock for the net assets of DiamondPeak, accompanied by a recapitalization whereby no goodwill or other intangible assets are recorded. Operations prior to the Business Combination will be those of Lordstown. The summary unaudited pro forma condensed combined balance sheet data as of June 30, 2020 gives effect to the Business Combination as if it had occurred on June 30, 2020. The summary unaudited pro forma condensed combined statements of operations data for the six months ended June 30, 2020 and combined statements of operations data for the year ended December 31, 2019 give effect to the business combination as if it had occurred on April 30, 2019.
The Summary Pro Forma Information has been derived from, and should be read in conjunction with, the more detailed unaudited pro forma condensed combined financial information of the post-combination company appearing elsewhere in this proxy statement and the accompanying notes to the unaudited pro forma condensed combined financial information. The unaudited pro forma condensed combined financial information is based upon, and should be read in conjunction with, the historical financial statements and related notes of DiamondPeak and Lordstown for the applicable periods included in this proxy statement. The Summary Pro Forma Information has been presented for informational purposes only and is not necessarily indicative of what the post-combination company’s financial position or results of operations actually would have been had the business combination been completed as of the dates indicated. In addition, the Summary Pro Forma Information does not purport to project the future financial position or operating results of the post-combination company.
The unaudited pro forma condensed combined financial information has been prepared using the assumptions below with respect to the potential redemption into cash of common stock:
•
Assuming Minimum Redemptions: This presentation assumes that no public stockholders of the Company exercise redemption rights with respect to their public shares for a pro rata portion of the funds in DiamondPeak’s trust account.
•
Assuming Maximum Redemptions: This presentation assumes that stockholders holding 27.0 million of the Company’s public shares will exercise their redemption rights for their pro rata portion (approximately $10.15 per share) of the funds in the Company’s trust account. This scenario gives effect to public share redemptions for aggregate redemption payments of $274.2 million using a per share redemption price that was calculated as $284,335,009 in the trust account per the unaudited pro forma condensed combined balance sheet divided by 28,000,000 DiamondPeak public shares as of June 30, 2020. The Merger Agreement includes as a condition to closing the Business Combination that, at the closing, DiamondPeak will have a minimum of $300.0 million in cash comprising (i) the cash held in the trust account after giving effect to DiamondPeak share redemptions and (ii) proceeds from the PIPE Investment. Additionally, this presentation also contemplates that the Sponsor and “Insiders” (as defined by the Letter Agreement) will forego their redemption rights pursuant to the “Letter Agreement,” signed February 27, 2019.
| |
|
|
Pro Forma
Combined
(Assuming
Minimum
Redemption)
|
|
|
Pro Forma
Combined
(Assuming
Maximum
Redemption)
|
|
|
Summary Unaudited Pro Forma Condensed Combined Statement of Operations Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30, 2020 (in thousands except per share data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
Net loss per share – Class A – basic and diluted
|
|
|
|
$ |
(0.12) |
|
|
|
|
$ |
(0.15) |
|
|
|
Weighted-average Class A shares outstanding – basic and
diluted
|
|
|
|
|
164,918,054 |
|
|
|
|
|
137,883,448 |
|
|
|
Summary Unaudited Pro Forma Condensed Combined Statement of Operations Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Period From April 30, 2019 through December 31, 2019 (in thousands except per share data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
|
|
$ |
— |
|
|
|
|
$ |
— |
|
|
|
Net loss per share – Class A – basic and diluted
|
|
|
|
$ |
(0.07) |
|
|
|
|
$ |
(0.08) |
|
|
|
Weighted-average Class A shares outstanding – basic and
diluted
|
|
|
|
|
164,918,054 |
|
|
|
|
|
137,883,448 |
|
|
|
Summary Unaudited Pro Forma Condensed Combined
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Data as of June 30, 2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
|
$ |
782,014 |
|
|
|
|
$ |
507,834 |
|
|
|
Total liabilities
|
|
|
|
$ |
7,054 |
|
|
|
|
$ |
7,054 |
|
|
|
Total stockholders’ equity
|
|
|
|
$ |
774,960 |
|
|
|
|
$ |
500,780 |
|
|
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
The statements contained in this proxy statement that are not purely historical are forward-looking statements. Our forward-looking statements include, but are not limited to, statements regarding our or our management team’s expectations, hopes, beliefs, intentions or strategies regarding the future. The information included in this proxy statement in relation to Lordstown has been provided by Lordstown and its management team. Forward-looking statements include statements relating to each of DiamondPeak and Lordstown’s management teams’ expectations, hopes, beliefs, intentions or strategies regarding the future. In addition, any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intends,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements in this proxy statement may include, for example, statements about:
•
conditions to the completion of the Business Combination and PIPE Investment, including stockholder approval of the Business Combination, may not be satisfied or the regulatory approvals required for the Business Combination may not be obtained on the terms expected or on the anticipated schedule;
•
the occurrence of any event, change or other circumstance that could give rise to the termination of the Merger Agreement between the parties or the termination of any Subscription Agreement;
•
the effect of the announcement or pendency of the Business Combination on Lordstown’s business relationships, operating results, and business generally;
•
risks that the proposed business combination disrupts Lordstown’s current plans and operations and potential difficulties in Lordstown’s employee retention as a result of the Business Combination;
•
risks related to diverting management’s attention from Lordstown’s ongoing business operations;
•
litigation that has been or may be instituted against DiamondPeak or Lordstown or their respective directors or officers related to the Business Combination, the PIPE Investment. the Merger Agreement, any Subscription Agreement or in relation to Lordstown’s business;
•
the certainty and volume of Lordstown’s pre-orders, including Lordstown’s ability identify potential new customers and pre-orders, its ability to convert pre-orders into binding orders and the ability of Lordstown’s customers to cancel or delay their pre-orders;
•
the amount of redemption requests made by DiamondPeak’s public stockholders and the effects of such requests on the funds available to the company following the Business Combination and the liquidity of the common stock;
•
the amount of the costs, fees, expenses and other charges related to the Business Combination and the PIPE Investment;
•
risks relating to the uncertainty of the projected financial information with respect to Lordstown including the conversion of pre-orders into binding orders;
•
risks related to Lordstown’s limited operating history, the rollout of Lordstown’s business and the timing of expected business milestones, including Lordstown’s ability to complete the engineering of the Endurance and retooling of Lordstown’s facility, and start production of the Endurance, on time and on budget;
•
the effects of competition and the pace and depth of electric vehicle adoption generally on Lordstown’s future business;
•
changes in regulatory requirements, governmental incentives and fuel and energy prices;
•
the ability of DiamondPeak to issue equity or equity-linked securities in connection with the transaction or in the future;
•
the impact of the global COVID-19 pandemic on any of the foregoing risks; and
•
such other factors as are set forth in the section of this proxy statement entitled “Risk Factors,” DiamondPeak’s periodic public filings with the SEC, including but not limited to those described under the in the section entitled “Risk Factors” and “Forward Looking Statements” in its final prospectus for its initial public offering, which was filed with the SEC on February 26, 2019 and Annual Report on Form 10-K for the fiscal year ended December 31, 2020, its subsequent quarterly reports on Form 10-Q, and in its other filings made with the SEC from time to time, which are available via the SEC’s website at www.sec.gov.
The forward-looking statements contained in this proxy statement are based on our current expectations and beliefs concerning future developments and their potential effects on us. There can be no assurance that future developments affecting us will be those that we have anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. Should one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.
Before you grant your proxy or instruct how your vote should be cast or vote on the Proposals, you should be aware that the occurrence of the events described in the section entitled “Risk Factors” and elsewhere in this proxy statement may adversely affect DiamondPeak or Lordstown.
RISK FACTORS
Risks Related to Lordstown’s Business Operations and Industry
Lordstown’s limited operating history makes it difficult for Lordstown to evaluate Lordstown’s future business prospects.
Lordstown is a company with an extremely limited operating history, and has generated no revenue to date. As Lordstown attempts to transition from research and development activities to commercial production and sales, it is difficult, if not impossible, to forecast Lordstown’s future results, and Lordstown has limited insight into trends that may emerge and affect Lordstown’s business. The estimated costs and timelines that Lordstown has developed to reach full scale commercial production are subject to inherent risks and uncertainties involved in the transition from a start-up company focused on research and development activities to the large-scale manufacture and sale of vehicles. There can be no assurance that Lordstown’s estimates related to the costs and timing necessary to complete design and engineering of the Endurance and to retool the Lordstown Complex will prove accurate. These are complex processes that may be subject to delays, cost overruns and other unforeseen issues. In addition, Lordstown has engaged in limited marketing activities to date, so even if Lordstown is able to bring the Endurance to market on time and on budget, there can be no assurance that fleet customers will embrace Lordstown’s product in significant numbers. Market conditions, many of which are outside of Lordstown’s control and subject to change, including general economic conditions, the availability and terms of financing, the impacts and ongoing uncertainties created by the COVID-19 pandemic, fuel and energy prices, regulatory requirements and incentives, competition and the pace and extent of vehicle electrification generally, will impact demand for the Endurance and ultimately Lordstown’s success.
Since Lordstown’s inception, Lordstown has experienced losses and expects to incur additional losses in the future.
Since inception, Lordstown has incurred, and Lordstown expects in the future while Lordstown grows to incur, losses and negative cash flow, either or both of which may be significant. The working capital funding necessary to start a new electric vehicle manufacturing company is significant, and other companies have tried and failed over the last several years with billions of investment capital. While Lordstown expects to benefit from Lordstown’s management’s experience, the technology Lordstown has licensed and developed to date, and the advantages offered by Lordstown’s Lordstown Complex, Lordstown does not expect to be profitable in the near term as Lordstown invests in its business, builds capacity and ramps up operations, and Lordstown cannot assure you that Lordstown will ever achieve or be able to maintain profitability in the future. Failure to become profitable may materially and adversely affect the value of your investment. If Lordstown is ever to achieve profitability, it will be dependent upon the successful development and commercial introduction and acceptance of electric pickup trucks such as the Endurance, which may not occur.
In addition, as a result of Lordstown’s history of losses and anticipated continuing losses, as well as the limited financing Lordstown has received to date, Lordstown’s independent auditor’s opinion with respect to the financial statements as of, and for the period ended, December 31, 2019, included a going concern qualification noting substantial doubt about Lordstown’s ability to continue as a going concern. Our financial statements contained elsewhere in this proxy statement do not include any adjustments that might result from the outcome of Lordstown’s inability to continue as a going concern. While Lordstown believes the proceeds of the Business Combination will provide sufficient funds to alleviate this doubt, additional funding may be required in the future for a variety of reasons. There can be no assurance that such financing would be available to Lordstown on favorable terms or at all. If Lordstown were not able to continue as a going concern, or there was continued doubt about its ability to do so, the value of your investment would be materially and adversely affected.
Lordstown is subject to risks related to health epidemics and pandemics, including the ongoing COVID-19 pandemic, which could adversely affect Lordstown’s business and operating results.
Lordstown faces various risks related to public health issues, including epidemics, pandemics, and other outbreaks, including the ongoing COVID-19 pandemic. The effects and potential effects of COVID-19,
including, but not limited to, its impact on general economic conditions, trade and financing markets, changes in customer behavior and continuity in business operations creates significant uncertainty. The spread of COVID-19 also disrupted the manufacturing, delivery and overall supply chain of vehicle manufacturers and suppliers, and has led to a global decrease in vehicle sales in markets around the world. In particular, the COVID-19 crisis may cause a decrease in demand for Lordstown’s vehicles if fleet operators delay purchases of vehicles or if fuel prices for internal combustion engine vehicles remain low, an increase in costs resulting from Lordstown’s efforts to mitigate the effects of COVID-19, delays in Lordstown’s schedule to full commercial production of the Endurance and disruptions to Lordstown’s supply chain, among other negative effects.
The pandemic has resulted in government authorities implementing many measures to contain the spread of COVID-19, including travel bans and restrictions, quarantines, shelter-in-place and stay-at-home orders, and business shutdowns. These measures may be in place for a significant period of time and may be reinstituted if conditions deteriorate, which could adversely affect Lordstown’s start-up and manufacturing plans. Measures that have been relaxed may be reimplemented if COVID-19 continues to spread. If, as a result of these measures, Lordstown has to limit the number of employees and contractors at the Lordstown Complex at a given time, it could cause a delay in retooling efforts or in the production schedule of the Endurance. Further, Lordstown’s sales and marketing activities may be adversely affected due to the cancellation or reduction of in-person sales activities, meetings, events and conferences. If Lordstown’s workforce is unable to work effectively, including due to illness, quarantines, government actions or other restrictions in connection with COVID-19, Lordstown’s operations will be adversely affected. Lordstown’s planned operations at a single facility, the Lordstown Complex, concentrate these risks.
The extent to which the COVID-19 pandemic may continue to affect Lordstown’s business will depend on continued developments, which are uncertain and cannot be predicted. Even after the COVID-19 pandemic has subsided, Lordstown may continue to suffer an adverse effect to Lordstown’s business due to its global economic effect, including any economic recession. If the immediate or prolonged effects of the COVID-19 pandemic have a significant adverse impact on government finances, it would create uncertainty as to the continuing availability of incentives related to electric vehicle purchases and other governmental support programs.
Lordstown is expected to require continued capital investment.
The design, manufacture and sale of vehicles is a capital intensive business. Although Lordstown anticipates that the funding from the Business Combination will provide sufficient capital to fund the completion of the Endurance and the retooling of the Lordstown Complex necessary to commence commercial production, Lordstown’s business plan to design, produce, sell and service commercial electric pickup trucks, including the Endurance, is expected to require continued capital investment to fund operations, continue research and development and improve infrastructure. Unlike established OEMs that have greater financial resources than Lordstown does, there can be no assurance that Lordstown will have access to the capital Lordstown needs on favorable terms when required or at all. If Lordstown cannot raise additional funds when Lordstown needs them, Lordstown’s financial condition and business could be materially adversely affected.
Failure to successfully retool the Lordstown Complex to support commercial production of electric vehicles could adversely affect Lordstown’s business and results of operations.
While Lordstown believes the Lordstown Complex provides significant competitive advantages, retooling and modifying the Lordstown Complex for production of electric vehicles is complicated and presents significant challenges. The size of the Lordstown Complex is massive, spanning over 6.2 million square feet, and many areas need to be retooled and modified. The stamping, body shop, paint and final assembly areas need to be converted from manufacturing traditional internal combustion engine vehicles to manufacturing electric vehicles. Lordstown also plans to create lines to assemble battery packs and manufacture hub motors. As with any large-scale capital project, it could be subject to delays, cost overruns or other complications. These risks could be exacerbated because Lordstown is attempting to modify a complex designed to build traditional internal combustion engine vehicles to support the emerging technologies behind electric vehicles. In order to commence commercial production at the Lordstown
Complex, Lordstown will also need to hire and train significant numbers of employees and integrate a yet-to-be-fully-developed supply chain. A failure to commence commercial production at the Lordstown Complex on schedule would lead to additional costs and delay Lordstown’s ability to generate meaningful revenues. In addition, it could diminish the “first mover” advantage Lordstown aims to attain, prevent Lordstown from gaining the confidence of potential customers and open the door to increased competition. All of the foregoing could hinder Lordstown’s ability to successfully launch and grow Lordstown’s business and achieve a competitive position in the market.
Lordstown will rely on complex machinery for its operations and production involves a significant degree of risk and uncertainty in terms of operational performance and costs.
Lordstown will rely heavily on complex machinery for our operations and our production will involve a significant degree of uncertainty and risk in terms of operational performance and costs. Lordstown’s manufacturing plant will consist of large-scale machinery combining many components. The manufacturing plant components are likely to suffer unexpected malfunctions from time to time and will depend on repairs and spare parts to resume operations, which may not be available when needed. Unexpected malfunctions of the manufacturing plant components may significantly affect the intended operational efficiency. Operational performance and costs can be difficult to predict and are often influenced by factors outside of our control, such as, but not limited to, scarcity of natural resources, environmental hazards and remediation, costs associated with decommissioning of machines, labor disputes and strikes, difficulty or delays in obtaining governmental permits, damages or defects in electronic systems, industrial accidents, pandemics, fire, and seismic activity and natural disasters. Should operational risks materialize, it may result in the personal injury to or death of workers, the loss of production equipment, damage to manufacturing facilities, monetary losses, delays and unanticipated fluctuations in production, environmental damage, administrative fines, increased insurance costs and potential legal liabilities, all which could have a material adverse effect on our business, results of operations, cash flows, financial condition or prospects.
The intellectual property license agreement Lordstown has with Workhorse Group is not exclusive to Lordstown.
Lordstown entered into an intellectual property license agreement (the “IPLA”) with Workhorse Group to use certain technologies and intellectual property that had been developed for Workhorse Group's W-15 electric pickup truck and patents directed toward vehicle chassis assembly, vehicle header and drive module and telematics, as well as related trade secrets know-how in the design and development of the Endurance. If a competitor licenses Workhorse Group’s technology and enters the market, Lordstown could face competitive pressures that could adversely impact Lordstown’s business.
With Lordstown’s vehicle still under development, Lordstown does not have any current customers or any pending orders and there is no assurance nonbinding pre-orders will be converted into binding orders or sales.
Lordstown’s business model is focused on building relationships with large fleet customers. To date, Lordstown has engaged in limited marketing activities and Lordstown has no binding contracts with customers. The non-binding pre-orders that Lordstown has signed did not require customer deposits and may not be converted into binding orders or sales. Until the time that the Endurance’s design and development is complete and is commercially available for purchase, and Lordstown is able to scale up its marketing function to support sales, there will be uncertainty as to customer demand for the Endurance. The potentially long wait from the time a pre-order is made until the time the Endurance is delivered, and any delays beyond expected wait times, could also impact user decisions on whether to ultimately make a purchase. Even if Lordstown is able to obtain binding orders, customers may limit their volume of purchases initially as they assess Lordstown’s vehicles and whether to make a broader transition to electric vehicles. This may be a long process and will depend on the safety, reliability, efficiency and quality of Lordstown’s vehicles, as well as the support and service that Lordstown offers. It will also depend on factors outside of Lordstown’s control, such as general market conditions and broader trends in fleet management and vehicle electrification, that could impact customer buying decisions. As a result, there is significant uncertainty regarding demand for Lordstown’s products and the pace and levels of growth that Lordstown will be able to achieve.
Lordstown’s future growth depends upon Lordstown’s ability to maintain relationships with Lordstown’s existing suppliers, source suppliers for Lordstown’s critical components, and complete building out Lordstown’s supply chain, while effectively managing the risks due to such relationships.
Lordstown’s success will be dependent upon Lordstown’s ability to enter into supplier agreements and maintain its relationships with suppliers who are critical and necessary to the output and production of Lordstown’s vehicles. Lordstown also relies on a small group of suppliers to provide Lordstown with the components for Lordstown’s vehicles. The supply agreements Lordstown has or may enter into with key suppliers in the future may have provisions where such agreements can be terminated in various circumstances, including potentially without cause. If these suppliers become unable to provide or experience delays in providing components or the supply agreements Lordstown has in place are terminated, it may be difficult to find replacement components. Changes in business conditions, pandemics, governmental changes, and other factors beyond Lordstown’s control or that Lordstown does not presently anticipate could affect Lordstown’s ability to receive components from Lordstown’s suppliers.
Further, Lordstown has not secured supply agreements for all of its components, including battery cells. Lordstown may be at a disadvantage in negotiating supply agreements for the production of its vehicles due to its limited operating history. In addition, there is the possibility that finalizing the supply agreements for the parts and components of Lordstown’s vehicle will cause significant disruption to Lordstown’s operations, or such supply agreements could be at costs that make it difficult for Lordstown to operate profitably.
If Lordstown does not enter into long-term supply agreements with guaranteed pricing for Lordstown’s battery cells or other parts or components, Lordstown may be exposed to fluctuations in components, materials and equipment prices. Substantial increases in the prices for such components, materials and equipment would increase Lordstown’s operating costs and could reduce Lordstown’s margins if Lordstown cannot recoup the increased costs. Any attempts to increase the announced or expected prices of Lordstown’s vehicles in response to increased costs could be viewed negatively by Lordstown’s potential customers and could adversely affect Lordstown’s business, prospects, financial condition or operating results.
Lordstown may experience delays in realizing Lordstown’s projected timelines and cost and volume targets for the production, launch and ramp up of the Endurance and the retooling of the Lordstown Complex, which could harm Lordstown’s business, prospects, financial condition and operating results.
Lordstown’s future business depends in large part on its ability to execute on its plans to develop, manufacture, market and sell or lease the Endurance. Any delay in the financing (including a delay in completion of the Business Combination), design, manufacture and launch of Endurance, including in the retooling of the Lordstown Complex, could materially damage Lordstown’s brand, business, prospects, financial condition and operating results. Vehicle manufacturers often experience delays in the design, manufacture and commercial release of new products. To the extent Lordstown experiences delays in the retooling of the Lordstown Complex or delays the launch of the Endurance, Lordstown’s growth prospects could be adversely affected. In addition, it could diminish the “first mover” advantage Lordstown aims to attain, prevent Lordstown from gaining the confidence of potential customers and open the door to increased competition. Furthermore, Lordstown relies on third-party suppliers for the provision and development of many of the key components and materials used in Lordstown’s vehicles. To the extent Lordstown’s suppliers experience any delays in providing Lordstown with or developing necessary components, whether due to COVID-19 or other reasons, Lordstown could experience delays in meeting its projected timelines.
Further, Lordstown has no experience to date in high volume manufacturing of its vehicles. Even if Lordstown is successful in developing its high volume manufacturing capability and processes and reliably sources its component supply, Lordstown cannot assure that Lordstown will be able to do so in a manner that avoids significant delays and cost overruns, including as a result of factors beyond Lordstown’s control such as problems with suppliers and vendors, or in time to meet Lordstown’s vehicle commercialization schedules or to satisfy the requirements of customers.
Lordstown will initially depend on revenue generated from a single model and in the foreseeable future will be significantly dependent on a limited number of models.
Lordstown will initially depend on revenue generated from a single vehicle model and in the foreseeable future will be significantly dependent on a single or limited number of models. Historically, automobile
customers have come to expect a variety of vehicle models offered in a manufacturer’s fleet and new and improved vehicle models to be introduced frequently. Given that for the foreseeable future Lordstown’s business will depend on a single or limited number of models, to the extent a particular model is not well-received by the market, Lordstown’s sales volume, business, prospects, financial condition, and operating results could be materially and adversely affected.
If Lordstown fails to scale its business operations and otherwise manage future growth effectively as Lordstown attempts to rapidly grow its company, Lordstown may not be able to produce, market, service and sell or lease its vehicles successfully.
Any failure to manage Lordstown’s growth effectively could materially and adversely affect Lordstown’s business, prospects, operating results or financial condition. Lordstown plans to commence limited commercial production of the Endurance at the Lordstown Complex in 2021 and is targeting significant growth thereafter. Lordstown’s future operating results depend to a large extent on its ability to manage its expansion and growth successfully. However, Lordstown has no experience to date in high volume manufacturing of its vehicles. Lordstown cannot assure that it will be able to develop efficient, automated, low-cost manufacturing capabilities and processes, and reliable sources of component supply, that will enable Lordstown to meet the quality, price, engineering, design and production standards, as well as the production volumes, required to successfully market its vehicles. Any failure to develop such manufacturing processes and capabilities within Lordstown’s projected costs and timelines could stunt Lordstown’s future growth and impair Lordstown’s ability to produce, market, service and sell or lease its vehicles successfully.
Lordstown may not be able to accurately estimate the supply and demand for its vehicles, which could result in a variety of inefficiencies in its business and hinder its ability to generate revenue. If Lordstown fails to accurately predict its manufacturing requirements, it could incur additional costs or experience delays.
It is difficult to predict Lordstown’s future revenues and appropriately budget for its expenses, and Lordstown may have limited insight into trends that may emerge and affect its business. Lordstown will be required to provide forecasts of its demand to its suppliers several months prior to the scheduled delivery of products to its prospective customers. Currently, there is no historical basis for making judgments on the demand for Lordstown’s vehicles or its ability to develop, manufacture, and deliver vehicles, or Lordstown’s profitability in the future. If Lordstown overestimates its requirements, its suppliers may have excess inventory, which indirectly would increase Lordstown’s costs. If Lordstown underestimates its requirements, its suppliers may have inadequate inventory, which could interrupt manufacturing of its products and result in delays in shipments and revenues. In addition, lead times for materials and components that Lordstown’s suppliers order may vary significantly and depend on factors such as the specific supplier, contract terms and demand for each component at a given time. If Lordstown fails to order sufficient quantities of product components in a timely manner, the delivery of vehicles to its customers could be delayed, which would harm Lordstown’s business, financial condition and operating results.
Lordstown’s future growth is dependent upon the willingness of operators of commercial vehicle fleets to adopt electric vehicles and on Lordstown’s ability to produce, sell and service vehicles that meet their needs. If the market for commercial electric vehicles does not develop as Lordstown expects or develops slower than Lordstown expects, Lordstown’s business, prospects, financial condition and operating results will be adversely affected.
Lordstown’s growth is dependent upon the adoption of electric vehicles by operators of commercial vehicle fleets and on Lordstown’s ability to produce, sell and service vehicles that meet their needs. The entry of commercial electric pickup trucks and vehicles into the medium-duty commercial vehicle market is a relatively new development, particularly in the United States, and is characterized by rapidly changing technologies and evolving government regulation, industry standards and customer views of the merits of using electric vehicles in their businesses. This process has been slow to date. As part of Lordstown’s sales efforts, Lordstown must educate fleet managers as to the economical savings during the life of the vehicle and the lower “total cost of ownership” of Lordstown’s vehicles. As such, Lordstown believes that operators of commercial vehicle fleets will consider many factors when deciding whether to purchase Lordstown’s commercial electric vehicles (or commercial electric vehicles generally) or vehicles powered by internal combustion engines, particularly diesel-fueled or natural gas-fueled vehicles. Lordstown believes these factors include:
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the difference in the initial purchase prices of commercial electric vehicles with comparable vehicles powered by internal combustion engines, both including and excluding the effect of government and other subsidies and incentives designed to promote the purchase of electric vehicles;
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the total cost of ownership of the vehicle over its expected life, which includes the initial purchase price and ongoing operating and maintenance costs;
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the availability and terms of financing options for purchases of vehicles and, for commercial electric vehicles, financing options for battery systems;
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the availability of tax and other governmental incentives to purchase and operate electric vehicles and future regulations requiring increased use of nonpolluting vehicles;
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government regulations and economic incentives promoting fuel efficiency and alternate forms of energy;
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fuel prices, including volatility in the cost of diesel or a prolonged period of low gasoline and natural gas costs that could decrease incentives to transition to electric vehicles;
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the cost and availability of other alternatives to diesel fueled vehicles, such as vehicles powered by natural gas;
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corporate sustainability initiatives;
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commercial electric vehicle quality, performance and safety (particularly with respect to lithium-ion battery packs);
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the quality and availability of service for the vehicle, including the availability of replacement parts;
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the limited range over which commercial electric vehicles may be driven on a single battery charge;
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access to charging stations and related infrastructure costs, and standardization of electric vehicle charging systems;
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electric grid capacity and reliability; and
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macroeconomic factors.
If, in weighing these factors, operators of commercial vehicle fleets determine that there is not a compelling business justification for purchasing commercial electric vehicles, particularly those that Lordstown will produce and sell, then the market for commercial electric vehicles may not develop as Lordstown expects or may develop more slowly than Lordstown expects, which would adversely affect Lordstown’s business, prospects, financial condition and operating results.
In addition, any reduction, elimination or selective application of tax and other governmental incentives and subsidies because of policy changes, the reduced need for such subsidies and incentives due to the perceived success of the electric vehicle, fiscal tightening or other reasons may result in the diminished competitiveness of the electric vehicle industry generally or Lordstown’s electric vehicles in particular, which would adversely affect Lordstown’s business, prospects, financial condition and operating results. Further, Lordstown cannot assure that the current governmental incentives and subsidies available for purchasers of electric vehicles will remain available.
If Lordstown is unable to address the service requirements of its future customers or there is inadequate access to charging stations, Lordstown’s business will be materially and adversely affected.
Demand for the Endurance will depend in part on the availability of service providers and charging infrastructure. Servicing electric vehicles is different than servicing internal combustion engine or hybrid vehicles and requires specialized skills, including high voltage training and servicing techniques. As the Endurance is not in production yet, Lordstown does not have experience servicing the Endurance. The Endurance also will require the use of charging stations to recharge its batteries. While the prevalence of charging stations has been increasing, their locations are significantly less widespread than gas stations. Lordstown plans to partner with third-party service providers to maintain and repair the Endurance, and with third-party electric vehicle station providers to offer installation of charging stations to Lordstown’s
customers. Lordstown does not have any such arrangements in place with such third parties to date. Some potential customers may choose not to purchase the Endurance because of the lack of a more widespread service network or charging infrastructure. If Lordstown is unable to satisfactorily service its future customers or provide a seamless access to charging infrastructure, Lordstown’s ability to generate customer loyalty, grow its business and sell Endurance could be impaired.
Lordstown may be unable to adequately control the costs associated with its operations
Lordstown may be unable to adequately control the costs associated with its operations. Lordstown expects to incur significant costs related to procuring raw materials required to manufacture and assemble its vehicles. The prices for these raw materials fluctuate depending on factors beyond Lordstown’s control. Lordstown’s business also depends on the continued supply of battery cells for its vehicles. Lordstown is exposed to multiple risks relating to availability and pricing of quality lithium-ion battery cells.
Furthermore, currency fluctuations, tariffs or shortages in petroleum and other economic or political conditions may result in significant increases in freight charges and raw material costs. Substantial increases in the prices for Lordstown’s raw materials or components would increase Lordstown’s operating costs, and could reduce Lordstown’s margins. In addition, a growth in popularity of electric vehicles without a significant expansion in battery cell production capacity could result in shortages, which would result in increased costs in raw materials to Lordstown or impact of prospects.
Lordstown depends upon key personnel and will need to hire and train additional personnel.
Lordstown’s success depends on the continuing services of key employees. Lordstown believes the depth and quality of the experience of its management team in the automotive and electric vehicles is a key to Lordstown’s ability to be successful. The loss of any of these individuals could have a material and adverse effect on Lordstown’s business operations. Additionally, the success of Lordstown’s operations will largely depend upon Lordstown’s ability to successfully attract and maintain competent and qualified key management personnel. As with any company with limited resources, there can be no guarantee that Lordstown will be able to attract such individuals or that the presence of such individuals will necessarily translate into profitability for Lordstown. The challenge will be exacerbated for Lordstown as it attempts to transition from start-up to full-scale commercial vehicle manufacturing and sales in a very short period of time under the unforeseeable business conditions which continue to evolve as a result of the impact of COVID-19. Lordstown’s inability to attract and retain key personnel may materially and adversely affect Lordstown’s business operations. Any failure by Lordstown’s management to effectively anticipate, implement, and manage the changes required to sustain Lordstown’s growth would have a material adverse effect on Lordstown’s business, financial condition, and results of operations.
Lordstown will also need to hire and train a significant number of hourly employees to engage in full-scale commercial manufacturing operations. This needs to be accomplished in a very short period of time in order for Lordstown to commence commercial production and sales in the second half of 2021 as targeted. There are various risks and challenges associated with hiring, training and managing a large workforce, and these risks and challenges will be exacerbated by the short period of time in which Lordstown intends to scale up its hourly workforce. Although the area surrounding the Lordstown Complex is home to a highly trained workforce with experience working in the Lordstown Complex and manufacturing vehicles, this workforce does not have experience with electric vehicle manufacturing and many jobs will require significant training. Furthermore, in the event employees hired by Lordstown seek to join or form a labor union, Lordstown could be subject to risks as it engages in and attempts to finalize negotiations with the union, including potential work slowdowns or stoppages, delays and increased costs. If Lordstown is unsuccessful in hiring and training a workforce in a timely and cost-effective manner, its business, financial condition and results of operations could be adversely affected.
We are highly dependent on the services of Stephen S. Burns, our Chief Executive Officer.
Lordstown is highly dependent on the services of Stephen S. Burns, its Chief Executive Officer, and is its largest stockholder. Mr. Burns is the founder of Lordstown and a significant influence and driver of Lordstown’s business plan. If Mr. Burns were to discontinue his service to Lordstown due to death, disability or any other reason, Lordstown would be significantly disadvantaged.
Lordstown faces intense competition, including that Lordstown may not be the first to market with an electric pickup truck. Many of Lordstown’s competitors have significantly greater financial or other resources, longer operating histories and greater name recognition than Lordstown does and one or more of these competitors could use their greater resources and/or name recognition to gain market share at Lordstown’s expense or could make it very difficult for Lordstown to establish significant market share.
Lordstown faces intense competition in its industry, which Lordstown may be unable to manage, including the risk that Lordstown may not be the first to market with an electric pickup truck. Established OEMs and new entrants to the industry have announced their intent to compete in the electric pickup truck market. In addition, established OEMs currently offer alternative fuel and hybrid medium-duty pickup trucks to the commercial fleet market. In the electric medium-duty pickup truck market in the United States, at least initially, Lordstown believes it will compete with few other manufacturers and will have fairly limited competition in the commercial fleet electric pickup truck category. However, if fleet operators begin transitioning to electric vehicles on a mass scale, which will be necessary for Lordstown to be successful, Lordstown expects that more competitors will enter the market and competition will become intense. Certain potential competitors, for example, have more significant financial resources, established market positions, long-standing relationships with customers and dealers who have more resources available to develop new products and introduce them into the marketplace than are currently available to Lordstown. As a result, Lordstown’s competitors may be able to compete more aggressively and sustain that competition over a longer period of time than Lordstown can. This expected competition places significant pressure on Lordstown’s ability to achieve its goals of completing the development of the Endurance, retooling of the Lordstown Complex and commencing commercial production and sales in the near term. If Lordstown is unable to do this successfully and leverage a “first mover” advantage to build strong customer relationships, Lordstown may not be able to compete successfully. This intense competitive environment may require Lordstown to make changes in its products, pricing, licensing, services, distribution, or marketing to develop a market position, any of which could have an adverse effect on Lordstown’s financial condition, results or prospects.
Lordstown’s electric vehicles will compete for market share with vehicles powered by other vehicle technologies that may prove to be more attractive than Lordstown’s vehicle technologies.
Lordstown’s target market currently is serviced by manufacturers with existing customers and suppliers using proven and widely accepted fuel technologies. Additionally, Lordstown’s competitors are working on developing technologies that may be introduced in Lordstown’s target market. If any of these alternative technology vehicles can provide lower fuel costs, greater efficiencies, greater reliability or otherwise benefit from other factors resulting in an overall lower total cost of ownership, this may negatively affect the commercial success of Lordstown’s vehicles or make Lordstown’s vehicles uncompetitive or obsolete.
Lordstown may be unable to keep up with changes in electric vehicle technology as new entrants and existing, larger manufacturers enter the electric vehicle space.
The Endurance is being designed for use with, and is dependent upon, existing electric vehicle technology. As new companies and larger, existing vehicle manufacturers enter the electric vehicle space, Lordstown may lose any technological advantage it may have had in the marketplace and suffer a decline in its position in the market. As technologies change, Lordstown plans to upgrade or adapt its products to continue to provide products with the latest technology. However, Lordstown’s products may become obsolete or Lordstown’s research and development efforts may not be sufficient to adapt to changes in or to create the necessary technology to effectively compete. As a result, Lordstown’s potential inability to adapt and develop the necessary technology may harm Lordstown’s competitive position.
Product liability or other claims could have a material adverse effect on Lordstown’s business.
The risk of product liability claims, product recalls, and associated adverse publicity is inherent in the manufacturing, marketing, and sale of all vehicles, including electric vehicles. Although Lordstown has liability insurance policies in place, that insurance may be inadequate to cover all potential product claims. Any product recall or lawsuit seeking significant monetary damages either in excess of Lordstown’s coverage, or outside of Lordstown coverage, may have a material adverse effect on Lordstown’s business and financial condition. Lordstown may not be able to secure additional liability insurance coverage on acceptable
terms or at reasonable costs when needed. A successful product liability claim against Lordstown could require Lordstown to pay a substantial monetary award. Moreover, a product recall could generate substantial negative publicity about Lordstown’s products and business and inhibit or prevent commercialization of other future product candidates. Lordstown cannot provide assurance that such claims and/or recalls will not be made in the future.
The acquisition of the Lordstown Complex required Lordstown to accept all environmental responsibility for the real property.
The Asset Transfer Agreement between Lordstown and GM pursuant to which Lordstown acquired the Lordstown Complex required Lordstown to accept the condition of the real property in “as is — where is” condition, including accepting all environmental conditions. The Lordstown Complex and all of its facilities and real property present environmental risk, both known and unknown. Prior to entering into the Asset Transfer Agreement, GM completed an investigation and remediation project pursuant to an Administrative Order on Consent (AOC) under the U.S. Environmental Protection Agency’s (the “EPA”) Resource Conservation and Recovery Act (“RCRA”) Corrective Action Program. As part of the U.S. EPA’s approval of GM’s investigation and remediation project, GM placed an environmental covenant on the real property, which requires, among other things, (i) the maintenance of nominal financial assurance, (ii) limits the real property to commercial/industrial use, (iii) the prohibition of groundwater for potable use, (iv) the implementation of a dust control plan, and (v) and the maintenance of impermeable surfaces on certain areas of the real property. Lordstown assumed these responsibilities under the environmental covenant as a condition to the consummation of the transactions contemplated by the Asset Transfer Agreement. In addition, to further manage potential environmental risk, Lordstown has secured environmental liability insurance coverage as required under the Asset Transfer Agreement. Finally, to mitigate the risk associated with the Ohio EPA’s authority to require future remediation activities at the Lordstown Complex, related to historic environmental conditions, Lordstown has entered into an Administrative Order with the Ohio EPA wherein the Ohio EPA agreed to not pursue enforcement actions against Lordstown for historic environmental conditions at the site provided that Lordstown complies with the terms of the environmental covenant. Notwithstanding the efforts that Lordstown has taken to mitigate environmental risk, there is no assurance that there will be no claims, lawsuits, fines or penalties that may arise; however, the environmental insurance is available to address such claims that relate to site contamination. Lordstown’s assumption of environmental liabilities at the Lordstown Complex could expose Lordstown to potential costs and liabilities that could adversely impact Lordstown’s financial condition.
Regulatory requirements may have a negative effect upon Lordstown’s business.
All vehicles sold must comply with international, federal, and state motor vehicle safety standards. In the United States, vehicles that meet or exceed all federally mandated safety standards are certified under the federal regulations. Rigorous testing and the use of approved materials and equipment are among the requirements for achieving federal certification. The Endurance will be subject to substantial regulation under federal, state, and local laws and standards. These regulations include those promulgated by the U.S. EPA, the National Highway Traffic Safety Administration (“NHTSA”), Pipeline and Hazardous Materials Safety Administration (“PHMSA”) and various state boards, and compliance certification is required for each new model year. These laws and standards are subject to change from time to time and Lordstown could become subject to additional regulations in the future. In addition, federal, state, and local laws and industrial standards for electric vehicles are still developing. Compliance with these regulations could be challenging, burdensome, time consuming, and expensive. If compliance results in delays or substantial expenses, Lordstown’s business could be adversely affected.
Lordstown’s success may be dependent on Lordstown’s development and protection of intellectual property rights.
Lordstown relies on confidentiality and trade secret protections to protect its proprietary technology. All new developments by Lordstown will be owned by Lordstown. Lordstown’s success will, in part, depend on Lordstown’s ability to obtain patents and trademarks and protect its trade secrets and proprietary technology. Lordstown is currently maintaining its engineering under confidentiality agreements and other agreements to preserve Lordstown’s trade secrets and other proprietary technology. Lordstown has filed
several trademark applications with the United States Patent and Trademark Office but has not finalized any as of this date. Although Lordstown has entered into confidentiality agreements with its employees and consultants and contractors, Lordstown’s agreements may not adequately protect Lordstown’s intellectual property, particularly with respect to conflicts of ownership relating to work product generated by Lordstown’s employees and consultants, and Lordstown cannot be certain that others will not gain access to its trade secrets and other proprietary technology. Others may independently develop substantially equivalent proprietary information and techniques or otherwise gain access to Lordstown’s trade secrets.
Lordstown may be exposed to liability for infringing upon other companies’ intellectual property rights.
Lordstown’s success will, in part, depend on Lordstown’s ability to operate without infringing on others’ proprietary rights. Although Lordstown is starting with a new design and development and is relying on the licensed rights from Workhorse Group and Elaphe, and while Lordstown is not aware of any patents and trademarks which would cause Lordstown’s products or their use to infringe the rights of any third parties, Lordstown cannot be certain that infringement has not or will not occur. Lordstown could incur substantial costs, in addition to the great amount of time lost, in defending any patent or trademark infringement suits or in asserting any patent or trademark rights, in a suit with another party.
The Endurance will make use of lithium-ion battery cells, which, if not appropriately managed and controlled, have been observed to catch fire or vent smoke and flames. If such events occur in the Endurance, Lordstown could face liability for damage or injury, adverse publicity and a potential safety recall, any of which could adversely affect Lordstown’s business, prospects, financial condition and operating results.
The battery packs in the Endurance will use lithium-ion cells, which have been used for years in laptop computers and cell phones. On rare occasions, if not appropriately managed and controlled, lithium-ion cells can rapidly release the energy they contain by venting smoke and flames in a manner that can ignite nearby materials. Lordstown could face liability for damage or injury, adverse publicity and a potential safety recall, any of which could adversely affect Lordstown’s business, prospects, financial condition and operating results. To limit any losses associated with such event, Lordstown will carry commercial general liability, commercial automobile liability and umbrella insurance, which may not be adequate to ensure against all losses.
Lordstown’s facility could be damaged or adversely affected as a result of disasters or other unpredictable events. Any prolonged disruption in the operations of Lordstown’s facility would adversely affect Lordstown’s business, prospects, financial condition and operating results.
Lordstown plans to engineer and assemble its electric vehicles at a single facility, the Lordstown Complex. Any prolonged disruption of the Lordstown Complex, whether due to technical, information systems, communication networks, strikes, accidents, weather conditions or other natural disaster, the COVID-19 pandemic or otherwise, whether short or long-term, would adversely affect Lordstown’s business, prospects, financial condition and operating results.
Lordstown may be exposed to delays, limitations and risks related to the environmental permits and other operating permits required to operate the Lordstown Complex.
Operation of an automobile manufacturing facility requires land use and environmental permits and other operating permits from federal, state and local government entities for the operation of the Lordstown Complex. While the Company has all permits necessary to perform its current plans and operations, Lordstown is in the process of applying for and securing the environmental, wastewater and land-use permits necessary for the commercial operation of the plant. Delays, denials or restrictions on any of the applications for or assignment of the permits to operate the Lordstown Complex could adversely affect the ability of Lordstown to execute on its business plans and objective.
If Lordstown’s vehicles fail to perform as expected, Lordstown’s ability to develop, market and sell or lease its electric vehicles could be harmed.
If Lordstown’s vehicles were to contain defects in design and/or manufacture that cause them not to perform as expected or that require repair, Lordstown’s ability to develop, market and sell its vehicles could
be harmed. For example, the operation of Lordstown’s vehicles is highly dependent on software that will require modification and updates over time. Software products are inherently complex and often contain defects and errors when first introduced. Lordstown currently has a limited frame of reference by which to evaluate the long-term quality, reliability and performance characteristics of its trucks, battery packs and other products. There can be no assurance that Lordstown will be able to detect and repair any defects in its products before commencing the sale of its vehicles. Any product defects or any other failure of Lordstown’s vehicles to perform as expected could harm Lordstown’s reputation and result in adverse publicity, lost revenue, delivery delays, product recalls, product liability claims or significant warranty and other expenses, and could have a material adverse impact on Lordstown’s business, financial condition, operating results and prospects. As a new entrant to the industry attempting to build customer relationships and earn trust, these effects could be particularly significant to Lordstown.
Lordstown will not have a third-party retail product distribution network.
Third-party dealer networks are the traditional method of vehicle sales distribution. Because Lordstown plans to sell directly to commercial fleet managers, Lordstown will not have a traditional dealer product distribution network. Building an in-house sales and marketing function at Lordstown may be expensive and time consuming. If the lack of a traditional dealer product distribution network results in lost opportunities to generate sales, it could limit Lordstown’s ability to grow. If Lordstown’s use of an in-house sales and marketing team is not effective, Lordstown’s results of operations and financial conditions could be adversely affected.
Lordstown may face legal challenges in one or more states attempting to sell directly to customers that could adversely affect Lordstown’s costs.
Lordstown’s business plan includes the direct sale of vehicles to commercial fleet operators, and potentially, to retail consumers. The laws governing licensing of dealers and sales of motor vehicles vary from state to state. Most states require a dealer license to sell new motor vehicles within the state, and many states prohibit manufacturers from being a licensed dealer and directly selling new motor vehicles to retail consumers. Lordstown anticipates that it can become a licensed dealer in certain states.
Lordstown may face legal challenges to this distribution model. For instance, in states where direct sales are not permitted, dealers and their lobbying organizations may complain to the agencies that Lordstown is acting in the capacity or a dealer without a license. In some states, regulators may restrict or prohibit Lordstown from directly providing warranty repair service, or from contracting with third parties who are not licensed dealers to provide warranty repair service. Because the laws vary from state to state, Lordstown’s distribution model must be carefully established and the sales and service process continually monitored for compliance with the various state requirements, which change from time to time. Regulatory compliance and likely challenges to the distribution model will add to the cost of Lordstown’s business.
If Lordstown is unable to establish and maintain confidence in its long-term business prospects among commercial fleet operators, analysts and within its industry, then Lordstown’s financial condition, operating results and business prospects may suffer materially.
Commercial fleet operators may be less likely to purchase Lordstown’s products now if they are not convinced that Lordstown’s business will succeed or that Lordstown’s operations will continue for many years. Similarly, suppliers and other third parties will be less likely to invest time and resources in developing business relationships with Lordstown if they are not convinced that Lordstown’s business will succeed. Accordingly, to build, maintain and grow Lordstown’s business, Lordstown must maintain confidence among commercial fleet operators, suppliers, analysts and other parties in Lordstown’s liquidity and long-term business prospects. Maintaining such confidence may be particularly complicated by certain factors, such as Lordstown’s limited operating history, unfamiliarity with Lordstown’s products, competition and uncertainty regarding the future of electric vehicles. Many of these factors are largely outside Lordstown’s control, and any negative perceptions about Lordstown’s long-term business prospects, even if exaggerated or unfounded, would likely harm Lordstown’s business and make it more difficult to raise additional capital in the future.
Lordstown may be compelled to undertake product recalls or take other actions, which could adversely affect Lordstown’s business, prospects, operating results, reputation and financial condition.
Any product recall in the future may result in adverse publicity, damage Lordstown’s reputation and adversely affect Lordstown’s business, prospects, operating results and financial condition. In the future, Lordstown may voluntarily or involuntarily, initiate a recall if any of Lordstown’s electric vehicles or its components (including Lordstown’s battery cells) prove to be defective or noncompliant with applicable federal motor vehicle safety standards. Such recalls, whether caused by systems or components engineered or manufactured by Lordstown or its suppliers, involve significant expense and diversion of management attention and other resources, which could adversely affect Lordstown’s brand image in its target market and Lordstown’s business, prospects, financial condition and operating results.
Insufficient warranty reserves to cover future warranty claims could adversely affect Lordstown’s business, prospects, financial condition and operating results.
Once Lordstown’s electric pickup trucks are in production, Lordstown will need to maintain warranty reserves to cover any warranty-related claims. If Lordstown’s warranty reserves are inadequate to cover such future warranty claims, Lordstown’s business, prospects, financial condition and operating results could be materially and adversely affected. Lordstown may become subject to significant and unexpected warranty expenses. There can be no assurances that then-existing warranty reserves will be sufficient to cover all claims.
Lordstown intends to collect and process certain information about its customers and will be subject to various privacy and data protection laws.
Lordstown intends to collect and process certain information about its customers, in accordance with applicable law and its own privacy policies. Any failure by Lordstown to comply with its privacy policy or any federal, state or international privacy, data protection or security laws or regulations could result in regulatory or litigation-related actions against Lordstown, legal liability, fines, damages and other costs. A failure by any of Lordstown’s vendors or business partners to comply with contractual or legal obligations regarding the protection of information about Lordstown customers could carry similar consequences. Should Lordstown become subject to additional privacy or data protection laws, Lordstown may need to undertake compliance efforts that could carry a large cost. Although Lordstown takes steps to protect the security of Lordstown’s customers’ personal information, Lordstown may be required to expend significant resources to comply with data security incident notification requirements if a third party accesses or acquires the personal information of Lordstown’s customers without authorization or Lordstown otherwise experiences a data security incident or loss of customers’ personal information. A major breach of Lordstown’s network security and systems could have negative effects on Lordstown’s business and future prospects, including possible fines, penalties and damages, reduced demand for Lordstown’s vehicles, and harm to Lordstown’s reputation and brand. Such a breach could also compromise or lead to a loss of protection of Lordstown’s intellectual property or trade secrets.
There are complex software and technology systems that need to be developed in coordination with vendors and suppliers in order to reach production for Lordstown’s electric vehicles, and there can be no assurance such systems will be successfully developed.
Lordstown vehicles will use a substantial amount of third-party and in-house software codes and complex hardware to operate. The development of such advanced technologies are inherently complex, and Lordstown will need to coordinate with its vendors and suppliers in order to reach production for its electric vehicles. Defects and errors may be revealed over time and Lordstown’s control over the performance of third-party services and systems may be limited. Thus, Lordstown’s potential inability to develop the necessary software and technology systems may harm its competitive position.
Lordstown is relying on third-party suppliers to develop a number of emerging technologies for use in its products, including lithium ion battery technology. These technologies are not today, and may not ever be, commercially viable. There can be no assurances that Lordstown’s suppliers will be able to meet the technological requirements, production timing, and volume requirements to support its business plan. In addition, the technology may not comply with the cost, performance useful life and warranty characteristics
Lordstown anticipates in its business plan. As a result, Lordstown’s business plan could be significantly impacted and Lordstown may incur significant liabilities under warranty claims which could adversely affect its business, prospects, and results of operations.
Interruption or failure of, or unauthorized access to, Lordstown’s or the Endurance’s information technology and communications systems could adversely affect Lordstown’s operating results and reputation.
Lordstown is currently developing information technology and communications systems to assist Lordstown in the management of Lordstown’s business. The production of Lordstown’s vehicles will require the development, maintenance and improvement of information technology and communications systems in the United States, which will include product data management, procurement, inventory management, production planning and execution, sales, service and logistics, financial, tax and regulatory compliance systems. The availability and effectiveness of operating Lordstown’s business will depend on these systems.
In addition, software, information technology and communications systems will be integral to the operation and functionality of the Endurance. The Endurance will be designed with built-in data connectivity to accept and install periodic remote updates to improve or update their functionality. Although these systems will be designed and tested for resiliency and security, they involve complex technologies and we cannot be certain they will be entirely free from vulnerabilities.
As a result, all of these systems may be vulnerable to damage or interruption from, among other things, data breaches, cyber-attacks, fire, natural disasters, power loss, telecommunications failures, computer viruses, and other attempts to harm Lordstown’s systems or the operation of Endurance vehicles. Lordstown cannot be certain that these systems or their required functionality will be effectively developed, implemented and maintained, and any disaster recovery planning cannot account for all eventualities. Any compromise of Lordstown’s proprietary information or the systems of Lordstown or the Endurance could adversely affect Lordstown’s reputation and could result in lengthy interruptions to Lordstown’s ability to operate its business and customers’ ability to operate the Endurance.
Lordstown may not succeed in establishing, maintaining and strengthening the Lordstown brand, which would materially and adversely affect customer acceptance of its vehicles and components and its business, revenues and prospects.
Lordstown’s business and prospects heavily depend on its ability to develop, maintain and strengthen the Lordstown brand. If Lordstown is not able to establish, maintain and strengthen its brand, it may lose the opportunity to build a critical mass of customers. Lordstown’s ability to develop, maintain and strengthen the Lordstown brand will depend heavily on the success of its marketing efforts. The automobile industry is intensely competitive, and Lordstown may not be successful in building, maintaining and strengthening its brand. Lordstown’s current and potential competitors, particularly automobile manufacturers headquartered in the United States, Japan, the European Union and China, have greater name recognition, broader customer relationships and substantially greater marketing resources than Lordstown does. If Lordstown does not develop and maintain a strong brand, its business, prospects, financial condition and operating results will be materially and adversely impacted.
Lordstown’s insurance strategy may not be adequate to protect Lordstown from all business risks.
In the ordinary course of business, Lordstown may be subject to losses resulting from products liability, accidents, acts of God and other claims against Lordstown, for which Lordstown may have no insurance coverage. While Lordstown currently carries commercial general liability, commercial automobile liability, excess liability, workers’ compensation, cyber security and directors’ and officers’ insurance policies, Lordstown may not maintain as much insurance coverage as other OEMs do, and in some cases, Lordstown may not maintain any at all. Additionally, the policies that Lordstown does have may include significant deductibles, and Lordstown cannot be certain that its insurance coverage will be sufficient to cover all future claims against Lordstown. A loss that is uninsured or exceeds policy limits may require Lordstown to pay substantial amounts, which could adversely affect Lordstown’s financial condition and operating results.
Lordstown is or may be subject to risks associated with strategic alliances or acquisitions.
Lordstown may from time to time consider entering into strategic alliances, including joint ventures, minority equity investments or other transactions with various third parties to further our business purpose. These alliances could subject us to a number of risks, including risks associated with sharing proprietary information, non-performance by the third party and increased expenses in establishing new strategic alliances, any of which may materially and adversely affect our business. We may have limited ability to monitor or control the actions of these third parties and, to the extent any of these strategic third parties suffers negative publicity or harm to their reputation from events relating to their business, we may also suffer negative publicity or harm to our reputation by virtue of our association with any such third party.
When appropriate opportunities arise, we may acquire additional assets, products, technologies or businesses that are complementary to our existing business. In addition to possible stockholder approval, we may need approvals and licenses from relevant government authorities for the acquisitions and to comply with any applicable laws and regulations, which could result in increased delay and costs, and may disrupt our business strategy if we fail to do so. Furthermore, acquisitions and the subsequent integration of new assets and businesses into our own require significant attention from our management and could result in a diversion of resources from our existing business, which in turn could have an adverse effect on our operations. Acquired assets or businesses may not generate the financial results we expect. Acquisitions could result in the use of substantial amounts of cash, potentially dilutive issuances of equity securities, the occurrence of significant goodwill impairment charges, amortization expenses for other intangible assets and exposure to potential unknown liabilities of the acquired business. Moreover, the costs of identifying and consummating acquisitions may be significant.
As a private company, Lordstown has not been required to document and test its internal controls over financial reporting nor has management been required to certify the effectiveness of its internal controls and its auditors have not been required to opine on the effectiveness of its internal control over financial reporting. Failure to maintain adequate financial, information technology and management processes and controls could result in material weaknesses which could lead to errors in Lordstown’s financial reporting, which could adversely affect Lordstown’s business.
As a private company, Lordstown has not been required to document and test its internal controls over financial reporting nor has management been required to certify the effectiveness of its internal controls and its auditors have not been required to opine on the effectiveness of its internal control over financial reporting. Similarly, Lordstown has not been subject to the SEC’s internal control reporting requirements. Following the Business Combination, the Company will become subject to the SEC’s internal control over financial reporting requirements and will become subject to the auditor attestation requirements in the year in which it is deemed to be a large accelerated filer, which would occur once the market value of its common equity held by non-affiliates exceeds $700 million as of the end of the prior fiscal year’s second fiscal quarter, or otherwise loses its “emerging growth company” status. As a result, we expect that our independent registered public accounting firm will be required to formally attest to the effectiveness of our internal controls over financial reporting commencing with the Company’s Annual Report on Form 10-K for the year ended December 31, 2021. The Company may not be able to complete its evaluation, testing and any required remediation in a timely fashion. In addition, Lordstown current controls and any new controls that it develops may become inadequate because of poor design and changes in its business, including increased complexity resulting from any international expansion. Any failure to implement and maintain effective internal controls over financial reporting could adversely affect the results of assessments by its independent registered public accounting firm and their attestation reports.
If we are unable to certify the effectiveness of our internal controls, or if our internal controls have a material weakness, Lordstown may not detect errors timely, its financial statements could be misstated, it could be subject to regulatory scrutiny and a loss of confidence by stakeholders, which could harm Lordstown’s business and adversely affect the market price of our common stock.
Risks Related to DiamondPeak and the Business Combination
We and Lordstown will be subject to business uncertainties and contractual restrictions while the Business Combination is pending.
Uncertainty about the effect of the Business Combination on employees and third parties may have an adverse effect on us and Lordstown. These uncertainties may impair the ability of Lordstown to retain and
motivate key personnel and could cause third parties that deal with Lordstown to defer entering into contracts or making other decisions or seek to change existing business relationships. If employees depart because of uncertainty about their future roles and the potential complexities of the business combination, our business following the Business Combination could be harmed.
Our ability to successfully effect the Business Combination and successfully operate the business thereafter will be largely dependent upon the efforts of certain key personnel. The loss of such key personnel and our inability to hire and retain replacements could negatively affect the operations and profitability of DiamondPeak following the Business Combination.
Our ability to successfully effect the Business Combination and successfully operate the business is dependent upon the efforts and expertise of certain key personnel, including the management team of Lordstown, particularly with respect to the expertise of the Lordstown management team in the electric vehicle industry. Although we expect key personnel to remain with the combined company following the Business Combination, and our obligation to consummate the Business Combination is conditioned upon the continued employment of certain Lordstown’s key employees pursuant to the Merger Agreement, there can be no assurance that they will do so. The loss of such key personnel and our inability to hire and retain replacements could negatively affect the operations of the combined company. Furthermore, following the closing, certain of the key personnel of Lordstown may be unfamiliar with the requirements of operating a company regulated by the SEC, which could cause the combined company to have to expend time and resources helping them become familiar with such requirements.
Our Sponsor and certain officers and directors have interests in the Business Combination that are different from or are in addition to other stockholders in recommending that stockholders vote in favor of approval of the Business Combination Proposal and approval of the other Proposals described in this proxy statement.
When considering our board of directors’ recommendation that our stockholders vote in favor of the approval of the Business Combination Proposal and the other Proposals described in this proxy statement, our stockholders should be aware that our Sponsor and certain officers and directors have interests in the Business Combination that may be different from, in addition to, or conflict with the interests of our stockholders in general. For a more complete description of these interests, see section entitled “Proposal Number 1 — The Business Combination Proposal — Interests of Certain Persons in the Business Combination.”
The unaudited pro forma condensed combined financial information included in this proxy statement may not be indicative of what our actual financial position or results of operations would have been.
The unaudited pro forma condensed consolidated combined financial information for DiamondPeak following the Business Combination in this proxy statement is presented for illustrative purposes only and is not necessarily indicative of what our actual financial position or results of operations would have been had the Business Combination been completed on the dates indicated. See the section entitled “Unaudited Pro Forma Condensed Combined Financial Information of DiamondPeak.”
The prospective financial information for Lordstown is based on various assumptions that may not prove to be correct.
Lordstown provided DiamondPeak with its internally prepared projections for the each of the years in the five year period ending December 31, 2024. The prospective financial information was not prepared with a view towards compliance with the published guidelines of the SEC or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information. These projections were prepared solely for internal use, and capital budgeting and other management purposes, and are subjective in many respects and therefore susceptible to varying interpretations and the need for periodic revision based on actual experience and business developments, and were not intended for third-party use, including by investors or holders. You are cautioned not to rely on the projections in making a decision regarding the Business Combination, as the projections may be materially different than actual results. These projections are not fact and should not be relied upon as being necessarily indicative of future results, and readers of this proxy statement are cautioned not to place undue reliance on the
prospective financial information. Further, prospective financial information does not reflect any impact of the proposed transaction and have not been updated since the date of preparation.
The projections reflect numerous assumptions including, among other things, assumptions with respect to general business, economic, market, regulatory and financial conditions and various other factors, all of which are difficult to predict and many of which are beyond Lordstown’s control, such as the risks and uncertainties contained in the section entitled “Risk Factors” or matters described in the sections entitled “Cautionary Note Regarding Forward-Looking Statements.” The prospective financial information also reflects assumptions as to certain business decisions that are subject to change.
The financial projections for net revenue are forward-looking statements that are based on growth assumptions that are inherently subject to significant uncertainties and contingencies, many of which are beyond Lordstown’s control. Since these projections covers multiple years, that information by its nature becomes less predictive with each successive year. Accordingly, there can be no assurance that the assumptions made in preparing any particular information will prove accurate. There will be differences between actual and projected results, and actual results may be materially greater or materially less than those contained in the projections. The inclusion of the projections in this proxy statement should not be regarded as an indication that Lordstown or its representatives considered or currently consider the projections to be a reliable prediction of future events, and reliance should not be placed on the projections.
The projections were requested by, and disclosed to, DiamondPeak for use as a component in its overall evaluation of Lordstown, and are included in this proxy statement because they were provided to the DiamondPeak board of directors for its evaluation of the business combination. Lordstown has not warranted the accuracy, reliability, appropriateness or completeness of the projections to anyone, including to DiamondPeak. None of DiamondPeak, Lordstown nor any of their respective affiliates, officers, directors, advisors or other representatives has made or makes any representation to any DiamondPeak stockholder or any other person regarding ultimate performance compared to the information contained in the prospective financial information or that financial and operating results will be achieved, and none of them intends to or undertakes any obligation to update or otherwise revise the projections to reflect circumstances existing after the date when made or to reflect the occurrence of future events in the event that any or all of the assumptions underlying the projections are shown to be in error. Accordingly, they should not be looked upon as “guidance” of any sort. Lordstown will not refer back to these forecasts in its future periodic reports filed under the Exchange Act.
The projections were prepared by, and are the responsibility of, Lordstown’s management. No independent auditors have audited, reviewed, examined, compiled nor applied agreed-upon procedures with respect to the accompanying prospective financial information and, accordingly, none of DiamondPeak, Lordstown or any of their independent auditors express an opinion or any other form of assurance with respect thereto or its achievability, and assume no responsibility for, and disclaim any association with, the prospective financial information. The audit reports included in this proxy statement relate to historical financial information. They do not extend to the prospective financial information and should not be read to do so.
Our Sponsor, our anchor investor, and certain of our directors and officers hold all of our founder shares and private placement warrants. They will lose their entire investment with respect to such securities if we do not complete an initial business combination.
Our Sponsor and our anchor investor currently hold all of our 7,000,000 founder shares, representing 20% of the total outstanding shares as of the date hereof. The founder shares will be worthless if we do not complete an initial business combination by March 4, 2021. In addition, our Sponsor and our anchor investor hold, collectively, all of the 5,066,667 private placement warrants. Our anchor investor and Mr. Hamamoto, our Chairman and Chief Executive Officer, also hold approximately 1,083,333 and 333,333 public warrants, respectively. Such private placement warrants and public warrants will also be worthless if we do not complete an initial business combination by March 4, 2021.
The founder shares are identical to the shares of Class A common stock, and holders of founder shares have the same stockholder rights as public stockholders, except that (i) the founder shares are subject to certain transfer restrictions, (ii) our Sponsor, officers and directors have entered into a letter agreement with
us, pursuant to which they have agreed (A) to waive their redemption rights with respect to any founder shares and any public shares held by them in connection with the completion of the Business Combination and to waive their redemption rights with respect to their founder shares and public shares in connection with a stockholder vote to approve an amendment to our Charter, (a) to modify the substance or timing of our obligation to redeem 100% of our public shares if we do not complete our initial business combination within the timeframe set forth in our Charter, or (b) with respect to any other provision relating to stockholders’ rights or pre-initial business combination activity and (C) to waive their rights to liquidating distributions from the Trust Account with respect to any founder shares held by them if we fail to complete our business combination within the timeframe set forth in our Charter, although they will be entitled to liquidating distributions from the Trust Account with respect to any public shares they hold if we fail to complete our business combination within such time period, (iii) the founder shares will automatically convert into shares of our Class A common stock at the time of our initial business combination on a one-for-one basis, subject to adjustment pursuant to certain anti-dilution rights as described in our Charter and (iv) are subject to registration rights.
The private placement warrants are identical to the warrants sold as part of the units in our Initial Public Offering except that, so long as they are held by our Sponsor, our anchor investor or their permitted transferees, (i) they will not be redeemable by us (except for a number of shares of Class A common stock), (ii) they (including the Class A common stock issuable upon exercise of these warrants) may not, subject to certain limited exceptions, be transferred, assigned or sold by our Sponsor and our anchor investor until 30 days after the completion of our initial business combination and (iii) they may be exercised by the holders on a cashless basis.
The personal and financial interests of our Sponsor and our officers and directors may have influenced their motivation in identifying and selecting the Lordstown, completing the Business Combination with Lordstown and influencing the operation of Lordstown following the Business Combination. For a more complete description of these interests, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Interests of Certain Persons in the Business Combination.”
If third parties bring claims against us, the proceeds held in the Trust Account could be reduced and the per share redemption amount received by stockholders may be less than $10.00 per share.
Our placing of funds in the Trust Account may not protect those funds from third-party claims against us. Although we have sought and will continue to seek to have all vendors, service providers, prospective target businesses, including Lordstown, or other entities with which we do business execute agreements with us waiving any right, title, interest or claim of any kind in or to any monies held in the Trust Account for the benefit of our public stockholders, such parties may not execute such agreements, or even if they execute such agreements they may not be prevented from bringing claims against the Trust Account, including, but not limited to, fraudulent inducement, breach of fiduciary responsibility or other similar claims, as well as claims challenging the enforceability of the waiver, in each case in order to gain advantage with respect to a claim against our assets, including the funds held in the Trust Account. If any third party refuses to execute an agreement waiving such claims to the monies held in the Trust Account, our management will perform an analysis of the alternatives available to it and will only enter into an agreement with a third party that has not executed a waiver if management believes that such third party’s engagement would be significantly more beneficial to us than any alternative. WithumSmith+Brown, PC, our independent registered public accounting firm, and Goldman Sachs & Co. LLC (“Goldman Sachs”), our financial advisor in connection with the Business Combination and the PIPE Investment did not execute agreements with us waiving such claims to the monies held in the Trust Account.
Examples of possible instances where we may engage a third party that refuses to execute a waiver include the engagement of a third party consultant whose particular expertise or skills are believed by management to be significantly superior to those of other consultants that would agree to execute a waiver or in cases where management is unable to find a service provider willing to execute a waiver. In addition, there is no guarantee that such entities will agree to waive any claims they may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with us and will not seek recourse against the Trust Account for any reason. Upon redemption of our public shares, if we are unable to complete our initial business combination within the prescribed timeframe, or upon the exercise of a redemption
right in connection with our initial business combination, we will be required to provide for payment of claims of creditors that were not waived that may be brought against us within the 10 years following redemption. Accordingly, the per share redemption amount received by public stockholders could be less than the $10.00 per share initially held in the Trust Account, due to claims of such creditors. Our Sponsor has agreed that it will be liable to us if and to the extent any claims by a vendor for services rendered or products sold to us, or a prospective target business, with which we have discussed entering into a transaction agreement, reduce the amount of funds in the Trust Account to below (i) $10.00 per public share or (ii) such lesser amount per public share held in the Trust Account as of the date of the liquidation of the Trust Account due to reductions in the value of the trust assets, in each case net of the interest which may be withdrawn to pay taxes. This liability will not apply with respect to any claims by a third party who executed a waiver of any and all rights to seek access to the Trust Account and except as to any claims under our indemnity of the underwriters of our initial public offering against certain liabilities, including liabilities under the Securities Act. Moreover, in the event that an executed waiver is deemed to be unenforceable against a third party, then our Sponsor will not be responsible to the extent of any liability for such third party claims. We have not independently verified whether our Sponsor has sufficient funds to satisfy its indemnity obligations and believe that our Sponsor’s only assets are our securities. We have not asked our Sponsor to reserve for such indemnification obligations. Therefore, we cannot assure you that our Sponsor would be able to satisfy those obligations. As a result, if any such claims were successfully made against the Trust Account, the funds available for our initial business combination and redemptions could be reduced to less than $10.00 per public share. In such event, we may not be able to complete our initial business combination, and you would receive such lesser amount per share in connection with any redemption of your public shares. None of our officers will indemnify us for claims by third parties including, without limitation, claims by vendors and prospective target businesses.
Our independent directors may decide not to enforce the indemnification obligations of our Sponsor, resulting in a reduction in the amount of funds in the Trust Account available for distribution to our public stockholders.
In the event that the proceeds in the Trust Account are reduced below the lesser of (i) $10.00 per public share or (ii) such lesser amount per share held in the Trust Account as of the date of the liquidation of the Trust Account due to reductions in the value of the trust assets, in each case net of the interest which may be withdrawn to pay taxes, and our Sponsor asserts that it is unable to satisfy its obligations or that it has no indemnification obligations related to a particular claim, our independent directors would determine whether to take legal action against our Sponsor to enforce its indemnification obligations.
While we currently expect that our independent directors would take legal action on our behalf against our Sponsor to enforce its indemnification obligations to us, it is possible that our independent directors in exercising their business judgment may choose not to do so if, for example, the cost of such legal action is deemed by the independent directors to be too high relative to the amount recoverable or if the independent directors determine that a favorable outcome is not likely. If our independent directors choose not to enforce these indemnification obligations, the amount of funds in the Trust Account available for distribution to our public stockholders may be reduced below $10.00 per share.
If, after we distribute the proceeds in the Trust Account to our public stockholders, we file a bankruptcy petition or an involuntary bankruptcy petition is filed against us that is not dismissed, a bankruptcy court may seek to recover such proceeds, and we and our board may be exposed to claims of punitive damages.
If, after we distribute the proceeds in the Trust Account to our public stockholders, we file a bankruptcy petition or an involuntary bankruptcy petition is filed against us that is not dismissed, any distributions received by stockholders could be viewed under applicable debtor/creditor and/or bankruptcy laws as either a “preferential transfer” or a “fraudulent conveyance.” As a result, a bankruptcy court could seek to recover all amounts received by our stockholders. In addition, our board of directors may be viewed as having breached its fiduciary duty to our creditors and/or having acted in bad faith, thereby exposing itself and us to claims of punitive damages, by paying public stockholders from the Trust Account prior to addressing the claims of creditors.
The parties to the Merger Agreement may amend the terms of the Merger Agreement or waive one or more of the conditions to the Business Combination, and the exercise of discretion by our directors and officers in agreeing to changes to the terms of or waivers of closing conditions in the Merger Agreement may result in a conflict of interest when determining whether such changes to the terms of the Merger Agreement or waivers of conditions are appropriate and in the best interests of our stockholders.
In the period leading up to the closing, other events may occur that, pursuant to the Merger Agreement, would require us to agree to amend the Merger Agreement, to consent to certain actions or to waive certain closing conditions or other rights that we are entitled to under the Merger Agreement. Such events could arise because of changes in the course of Lordstown’s business, a request by Lordstown to undertake actions that would otherwise be prohibited by the terms of the Merger Agreement or the occurrence of other events that would have a material adverse effect on Lordstown’s business and would entitle us to terminate the Merger Agreement. In any of such circumstances, it would be in our discretion, acting through our board of directors, to grant our consent or waive our rights. The existence of the financial and personal interests of the directors and officers described elsewhere in this proxy statement may result in a conflict of interest on the part of one or more of the directors or officers between what he or she may believe is best for DiamondPeak and our stockholders and what he or she may believe is best for himself or herself or his or her affiliates in determining whether or not to take the requested action.
For example, it is a condition to DiamondPeak’s obligation to close the Business Combination that Lordstown’s representations and warranties be true and correct as of the date of the Merger Agreement and the closing in all respects subject to the applicable materiality standard as set forth in the Merger Agreement. However, if our board of directors determines that any such breach is not material to the business of Lordstown, then the board may elect to waive that condition and close the Business Combination. The parties will not waive the condition that DiamondPeak’s stockholders approve the Business Combination.
As of the date of this proxy statement, we do not believe there will be any material changes or waivers that our directors and officers would be likely to make after stockholder approval of the Business Combination has been obtained. While certain changes could be made without further stockholder approval, if there is a change to the terms of the Business Combination that would have a material impact on the stockholders, we will be required to circulate a new or amended proxy statement or supplement thereto and resolicit the vote of our stockholders with respect to the Business Combination Proposal.
If, before distributing the proceeds in the Trust Account to our public stockholders, we file a bankruptcy petition or an involuntary bankruptcy petition is filed against us that is not dismissed, the claims of creditors in such proceeding may have priority over the claims of our stockholders and the per share amount that would otherwise be received by our stockholders in connection with our liquidation may be reduced.
If, before distributing the proceeds in the Trust Account to our public stockholders, we file a bankruptcy petition or an involuntary bankruptcy petition is filed against us that is not dismissed, the proceeds held in the Trust Account could be subject to applicable bankruptcy law, and may be included in our bankruptcy estate and subject to the claims of third parties with priority over the claims of our stockholders. To the extent any bankruptcy claims deplete the Trust Account, the per share amount that would otherwise be received by our stockholders in connection with our liquidation may be reduced.
Even if we consummate the Business Combination, there is no guarantee that the public warrants will be in the money at the time they become exercisable, and they may expire worthless.
The exercise price for our public warrants is $11.50 per share of Class A common stock. There is no guarantee that the public warrants will be in the money following the time they become exercisable and prior to their expiration, which will occur on the fifth anniversary of the completion of our initial business combination, and as such, the public warrants may expire worthless.
We have not registered the shares of Class A common stock issuable upon exercise of the warrants under the Securities Act or any state securities laws at this time, and such registration may not be in place when an investor desires to exercise warrants, thus precluding such investor from being able to exercise its warrants except on a cashless basis and potentially causing such warrants to expire worthless.
We have not registered the shares of Class A common stock issuable upon exercise of the warrants issued in our Initial Public Offering under the Securities Act or any state securities laws at this time. However,
under the terms of the warrant agreement, we have agreed that, as soon as practicable, but in no event later than 15 business days after the closing of our initial business combination, we will use our reasonable best efforts to file, and within 60 business days following our initial business combination to have declared effective, a registration statement under the Securities Act covering such shares and maintain a current prospectus relating to the Class A common stock issuable upon exercise of the warrants, until the expiration of the warrants in accordance with the provisions of the warrant agreement. We cannot assure you that we will be able to do so if, for example, any facts or events arise which represent a fundamental change in the information set forth in such registration statement or prospectus, the financial statements contained or incorporated by reference therein are not current or correct or the SEC issues a stop order. If the shares issuable upon exercise of the warrants issued in our Initial Public Offering are not registered under the Securities Act, we will be required to permit holders to exercise their warrants on a cashless basis. However, no warrant will be exercisable for cash or on a cashless basis, and we will not be obligated to issue any shares to holders seeking to exercise their warrants, unless the issuance of the shares upon such exercise is registered or qualified under the securities laws of the state of the exercising holder, or an exemption from registration is available. Notwithstanding the above, if our Class A common stock is at the time of any exercise of a warrant not listed on a national securities exchange such that it satisfies the definition of a “covered security” under Section 18(b)(1) of the Securities Act, we may, at our option, require holders of public warrants who exercise their warrants to do so on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act and, in the event we so elect, we will not be required to file or maintain in effect a registration statement, but we will be required to use our best efforts to register or qualify the shares under applicable blue sky laws to the extent an exemption is not available. In no event will we be required to net cash settle any warrant. If the issuance of the shares upon exercise of the warrants is not so registered or qualified or exempt from registration or qualification, the holder of such warrant will not be entitled to exercise such warrant and such warrant may have no value and expire worthless. In such event, holders who acquired their warrants as part of a purchase of units will have paid the full unit purchase price solely for the shares of Class A common stock included in the units. If and when the warrants become redeemable by us, we may exercise our redemption right even if we are unable to register or qualify the underlying shares of Class A common stock for sale under all applicable state securities laws.
We may amend the terms of the warrants in a manner that may be adverse to holders of public warrants with the approval by the holders of at least 50% of the then-outstanding public warrants. As a result, the exercise price of your warrants could be increased, the exercise period could be shortened and the number of shares of our Class A common stock purchasable upon exercise of a warrant could be decreased, all without your approval.
Our warrants were issued in registered form under a warrant agreement between American Stock Transfer & Trust Company, as warrant agent, and us. The warrant agreement provides that the terms of the warrants may be amended without the consent of any holder to cure any ambiguity or correct any defective provision, but requires the approval by the holders of at least 50% of the then-outstanding public warrants to make any change that adversely affects the interests of the registered holders of public warrants. Accordingly, we may amend the terms of the public warrants in a manner adverse to a holder if holders of at least 50% of the then-outstanding public warrants approve of such amendment. Although our ability to amend the terms of the public warrants with the consent of at least 50% of the then-outstanding public warrants is unlimited, examples of such amendments could be amendments to, among other things, increase the exercise price of the warrants, convert the warrants into cash, shorten the exercise period or decrease the number of shares of our Class A common stock purchasable upon exercise of a warrant.
We may redeem the unexpired warrants prior to their exercise at a time that is disadvantageous to warrant holders, thereby making their warrants worthless.
We have the ability to redeem outstanding warrants at any time after they become exercisable and prior to their expiration, at a price of $0.01 per warrant, provided that the last reported sales price of our Class A common stock equals or exceeds $18.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within a 30 trading-day period ending on the third trading day prior to the date on which we give proper notice of such redemption and provided certain other conditions are met. If and when the warrants become redeemable by us, we may exercise our redemption right even if we are unable to register or qualify the underlying securities for sale under all applicable state securities laws. Redemption of the outstanding warrants could force the warrant
holders (i) to exercise their warrants and pay the exercise price therefor at a time when it may be disadvantageous for them to do so, (ii) to sell their warrants at the then-current market price when they might otherwise wish to hold their warrants or (iii) to accept the nominal redemption price which, at the time the outstanding warrants are called for redemption, is likely to be substantially less than the market value of their warrants. None of the private placement warrants will be redeemable by us so long as they are held by the Sponsor, our anchor investor or their permitted transferees.
Because certain of our shares of Class A common stock and warrants currently trade as units consisting of one share of Class A common stock and one-third of one warrant, the units may be worth less than units of other blank check companies.
Certain of our shares of Class A common stock and warrants currently trade as units consisting of one share of Class A common stock and one-third of one warrant. Because, pursuant to the warrant agreement, the warrants may only be exercised for a whole number of shares, only a whole warrant may be exercised at any given time. No fractional shares will be issued upon exercise of the warrants. If, upon exercise of the public warrants, a holder would be entitled to receive a fractional interest in a share, we will, upon exercise, round down to the nearest whole number the number of shares of Class A common stock to be issued to the warrant holder. As a result, public warrant holders who did not purchase a number of units or warrants that would convert into a whole share must sell any odd number of warrants in order to obtain full value from the fractional interest that will not be issued. This is different from other companies similar to ours whose units include one share of common stock and one warrant to purchase one whole share. This unit structure may cause our units to be worth less than if it included a warrant to purchase one whole share.
Warrants will become exercisable for our Class A common stock, which would increase the number of shares eligible for future resale in the public market and result in dilution to our stockholders.
We issued warrants to purchase an aggregate of 9,333,333 shares of Class A common stock as part of the units offered in our Initial Public Offering and, simultaneously with the closing of our Initial Public Offering, we issued private placement warrants to the Sponsor and our anchor investor to purchase an aggregate of 5,066,667 shares of Class A common stock. Each warrant issued is exercisable to purchase one whole share of Class A common stock at $11.50 per whole share. In addition, contemporaneously with the closing, we will issue the BGL Warrants, entitling BGL to purchase, in the aggregate, 1% of the issued and outstanding common stock of DiamondPeak, as determined immediately after giving effect to the Business Combination and the PIPE Investment. The BGL Warrants will be identical to public warrants other than certain terms specified in the BGL Letter Agreement. For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — BGL Letter Agreement.” To the extent such warrants are exercised, additional shares of our Class A common stock will be issued, which will result in dilution to the then existing holders of our Class A common stock and increase the number of shares eligible for resale in the public market. Sales of substantial numbers of such shares in the public market could adversely affect the market price of our Class A common stock.
The private placement warrants are identical to the warrants sold as part of the units offered in our Initial Public Offering except that, so long as they are held by the Sponsor, our anchor investor or their permitted transferees, (i) they will not be redeemable by us (except for a number of shares of Class A common stock), (ii) they (including the Class A common stock issuable upon exercise of these warrants) may not, subject to certain limited exceptions, be transferred, assigned or sold by our Sponsor and our anchor investor until 30 days after the completion of our initial business combination and (iii) they may be exercised by the holders on a cashless basis.
A market for our securities may not continue, which would adversely affect the liquidity and price of our securities.
Following the Business Combination, the price of our securities may fluctuate significantly due to the market’s reaction to the Business Combination and general market and economic conditions. An active trading market for our securities following the Business Combination may never develop or, if developed, it may not be sustained. In addition, the price of our securities after the Business Combination can vary due
to general economic conditions and forecasts, our general business condition and the release of our financial reports. Additionally, if our securities are not listed on, or become delisted from Nasdaq for any reason, and are quoted on the OTC Bulletin Board, an inter-dealer automated quotation system for equity securities that is not a national securities exchange, the liquidity and price of our securities may be more limited than if we were quoted or listed on Nasdaq or another national securities exchange. You may be unable to sell your securities unless a market can be established or sustained.
A significant portion of our total outstanding shares are restricted from immediate resale but may be sold into the market in the near future. This could cause the market price of our Class A common stock to drop significantly, even if our business is doing well.
Sales of a substantial number of shares of Class A common stock in the public market could occur at any time. These sales, or the perception in the market that the holders of a large number of shares intend to sell shares, could reduce the market price of our Class A common stock. After the Business Combination (and assuming no redemptions by our public stockholders of public shares), our Sponsor will own approximately 3.7% of our Class A common stock (or 4.9%, assuming a maximum redemption by our public stockholders of 27,000,000 public shares).
In connection with the closing of our Initial Public Offering, we entered into a registration rights agreement with our Sponsor and our anchor investor providing for registration rights to them with respect to the private placement warrants, the warrants issuable upon conversion of working capital loans and the shares of Class A common stock issuable upon exercise of the foregoing and upon conversion of the founder shares. Following the execution of the Merger Agreement, we entered into the Registration Rights and Lockup Agreement with our Sponsor, our anchor investor, GM, Stephen S. Burns, Workhorse Group and BGL (collectively, the “Holders”), dated August 1, 2020 and to be effective as of the Effective Time, which will amend, restate and replace the registration rights agreement described above. Pursuant to the Registration Rights and Lockup Agreement, DiamondPeak is required to file a registration statement registering the resale of the Class A common stock (including those held as of the Effective Time or issuable upon future exercise of the private placement warrants or the BGL Warrants) and private placement warrants held by the Holders within 45 days following the closing.
The Registration Rights and Lockup Agreement provides that certain securities of DiamondPeak held by certain of the Holders are to be locked-up as follows: (i) any shares of Class A common stock held by the Sponsor will be locked-up for one year following the closing, subject to certain exceptions based on the trading price of DiamondPeak’s Class A Common Stock, (ii) any shares of Class A common stock held by GM, Workhorse Group or BGL (which shares will account for 13.9% of all Class A common stock outstanding following the closing, assuming the full exercise of the public warrants, the private placement warrants and the BGL Warrants) will be locked-up for six months following the closing, (iii) any shares of Class A common stock held by Stephen S. Burns will be locked-up for one year following the closing, and 50% of the shares of Class A common stock held by Stephen S. Burns as of the date of the Registration Rights and Lockup Agreement will be locked-up for two years following the closing.
In addition, Stephen S. Burns agreed not to transfer any shares of Class A common stock held by him if, immediately following such transfer, the shares owned by him would be fewer than the number of shares that would be required to satisfy any outstanding indemnification claim made by DiamondPeak pursuant to the Merger Agreement. For additional information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — The Merger Agreement — Indemnification.”
The lock-up restrictions provided in the Registration Rights and Lockup Agreement will not apply to our anchor investor, which will remain subject to the lockup provisions set forth in the subscription agreements entered by it with DiamondPeak in connection with the Initial Public Offering. For more information, see the section entitled “Proposal Number 1 — The Business Combination Proposal — Related Agreements — Registration Rights and Lockup Agreement.”
The Subscription Agreements include a jury trial waiver that could limit a PIPE Investor’s ability to bring or demand a jury trial in any claim or cause of action that it seeks to bring based upon or arising out of or related to the Subscription Agreements.
The Subscription Agreements contain a provision pursuant to which the parties waive their respective rights to a trial by jury in any claim or cause of action based upon, arising out of or related to the Subscription
Agreements. In addition the waiver applies to any action, counterclaim or other proceeding which seeks, in whole or in part, to challenge the validity or enforceability of the Subscription Agreements or any provision of the Subscription Agreements. This jury trial waiver does not apply to subsequent secondary purchasers of the Class A common stock issued and sold pursuant to the Subscription Agreements nor does it apply to any other shareholders of DiamondPeak. Further, this jury trial waiver does not apply to the PIPE Investors in respect of any claim or cause of action that is not based upon, arising out of or related to the Subscription Agreements.
If we opposed a jury trial demand based on the jury trial waiver, the appropriate court would determine whether the waiver was enforceable based on the facts and circumstances of that case in accordance with the applicable state and federal law, including in respect of federal securities laws claims. To our knowledge, the enforceability of a contractual pre-dispute jury trial waiver in connection with claims arising under the federal securities laws has not been finally adjudicated by the United States Supreme Court. However, we believe that a contractual pre-dispute jury trial waiver provision is generally enforceable, including under the laws of the Del
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