LUXHP LuxUrban Hotels Inc

 

The information in this preliminary prospectus supplement and the accompanying prospectus is not complete and may be changed. This preliminary prospectus supplement and the accompanying prospectus are not an offer to sell these securities and are not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

Subject to completion, dated May [●], 2024

 

PRELIMINARY PROSPECTUS SUPPLEMENT	Filed pursuant to Rule 424(b)(5)
(To Prospectus dated May 8, 2024)	Registration No. 333-278883

 

LUXURBAN HOTELS INC.

 

          shares of Common Stock

 

We are offering [●] shares of our common stock pursuant to this prospectus supplement and the accompanying base prospectus.

 

Our common stock is listed for trading on the Nasdaq Capital Market under the symbol “LUXH.” On May [●], 2024, the last reported sales price of our common stock was $[●].

 

		Per Share				Total Amount
Public offering price		$	[●]			$	[●]
Underwriting discount			[●]				[●]
Proceeds to us, before offering expenses			[●]				[●]

 

We have also agreed to pay the underwriters a fee/commission equivalent to seven percent (7%) of the gross proceeds of this offering,, to issue to the underwriters warrants to purchase that number of shares of our common stock equal to 6% of the number of shares sold in this offering (with a per-share exercise price equal to 110% of the per-share offering price in this offering), and to reimburse the underwriters for up to an aggregate of $100,000 of necessary, reasonable and documented out-of-pocket expenses. Directors and officers and existing stockholders of our company may participate in the offering on the same terms offered to the public. See “Underwriting” for a more complete description of the compensation payable to the underwriter.

 

We have granted the underwriters an over-allotment option. This option, which is exercisable for up to [●] days after the date of this prospectus supplement, permits the underwriters to purchase a maximum of [●] additional shares of common stock from us to cover over-allotments. If the underwriters exercise all or part of this option, they will purchase shares of common stock covered by the option at the public offering price that appears above, less the underwriting discount. If this option is exercised in full, the total price to the public will be $[●] and the total proceeds to us will be $[●].

 

Certain officers, directors, and holders of 5% or more of our common stock and affiliates thereof may participate in this offering.

 

We are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012 and have elected to comply with certain reduced public company reporting requirements for this prospectus supplement and future filings.

 

Investing in our securities involves a high degree of risk. See the section entitled “Risk Factors” beginning on page S-13 of this prospectus supplement and in the documents incorporated by reference herein for a discussion of information that should be considered in connection with an investment in our securities.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus supplement. Any representation to the contrary is a criminal offense.

 

Delivery of the shares is expected to be made against payment therefor on or about May [●], 2024.

 

Roth Capital Partners

Alexander Capital, LP

 

The date of this prospectus supplement is May [●], 2024.

 

 

TABLE OF CONTENTS

 

PROSPECTUS SUPPLEMENT

 

		Page
PROSPECTUS SUPPLEMENT SUMMARY		S-1
THE OFFERING		S-12
RISK FACTORS		S-13
NOTE ON FORWARD-LOOKING STATEMENTS		S-16
USE OF PROCEEDS		S-18
CAPITALIZATION		S-19
DILUTION		S-20
DESCRIPTION OF COMMON STOCK		S-21
UNDERWRITING		S-22
LEGAL MATTERS		S-33
EXPERTS		S-33
WHERE YOU CAN FIND MORE INFORMATION		S-33
INFORMATION INCORPORATED BY REFERENCE		S-34

 

BASE PROSPECTUS

 

ABOUT THIS PROSPECTUS		1
PROSPECTUS SUMMARY		2
RISK FACTORS		7
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS		8
USE OF PROCEEDS		10
DESCRIPTION OF CAPITAL STOCK		11
DESCRIPTION OF WARRANTS		14
DESCRIPTION OF UNITS		23
PLAN OF DISTRIBUTION		25
LEGAL MATTERS		27
EXPERTS		27
WHERE YOU CAN FIND MORE INFORMATION		27
INCORPORATION OF INFORMATION BY REFERENCE		28

 

 

You should rely only on the information contained or incorporated by reference in this prospectus supplement and the accompanying base prospectus. We have not authorized anyone to provide you with different information. We are not making an offer of these securities in any state or jurisdiction where the offer is not permitted.

 

This prospectus supplement and the accompanying base prospectus are part of a registration statement on Form S-3 (Registration No. 333-278883) we filed with the Securities and Exchange Commission, or the “SEC,” using a “shelf” registration process. Under this shelf process, we may, from time to time, sell or issue any of the combination of securities described in the base prospectus in one or more offerings with a maximum aggregate offering price of up to $50,000,000. The base prospectus provides you with a general description of us and the securities we may offer, some of which may not apply to this offering. Each time we sell securities using the base prospectus, we provide a prospectus supplement that contains specific information about the terms of that offering. A prospectus supplement may also add, update or change information contained in the base prospectus and the documents incorporated by reference into the prospectus supplement or the base prospectus.

 

This prospectus supplement provides specific details regarding this offering of [●] shares of our common stock. To the extent there is a conflict between the information contained in this prospectus supplement and the base prospectus, you should rely on the information in this prospectus supplement. This prospectus supplement, the base prospectus and the documents we incorporate by reference herein and therein include important information about us and our common stock, and other information you should know before investing. You should read both this prospectus supplement and the base prospectus, together with the additional information in “Where You Can Find More Information” and “Information Incorporated by Reference.”

 

You should not assume the information appearing in this prospectus supplement or the base prospectus is accurate as of any date other than the date on the front cover of the respective documents. You should not assume the information contained in the documents incorporated by reference in this prospectus supplement or the base prospectus is accurate as of any date other than the respective dates of those documents. Our business, financial condition, results of operations, and prospects may have changed since such date.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RISK FACTORS

 

An investment in our securities involves a high degree of risk. Before you make a decision to invest in our common stock, you should consider carefully the risk factors described below and in the accompanying base prospectus, together with other information in this prospectus supplement, the accompanying base prospectus, and the information incorporated by reference herein and therein as set forth in our filings with the SEC, including our annual report on Form 10-K for the year ended December 31, 2023. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business and results of operations. If any of these risks actually occur, our business, financial condition or results of operations could be seriously harmed. In that event, the market price for our common stock could decline and you may lose all or part of your investment.

 

Risks Related to this Offering

 

Our financial statements have been prepared on a going concern basis and we must raise additional capital to fund our operations and to service accrued and existing liabilities and cue existing defaults in order to continue as a going concern.

 

Our current liquidity position raises substantial doubt about our ability to continue as a going concern. If we are unable to improve our liquidity position we may not be able to continue as a going concern. The consolidated financial statements included in our Annual Report on From 10-K for the year ended December 31, 2023 and Quarterly Report on Form 10-Q for the three month period ended March 31, 2024 do not include any adjustments that might result if we are unable to continue as a going concern and, therefore, be required to realize our assets and discharge our liabilities other than in the normal course of business, which could cause investors to suffer the loss of all or a substantial portion of their investment.

 

We will be required to raise substantial capital to meet our currently accrued obligations and for the servicing of existing current liabilities, to service near-term future obligations that will arise in the ordinary course of our operations, and to fund the continued expansion of our hotel properties portfolio and business operations. We are currently in default under certain leases and other agreements. The net proceeds of this offering will only meet a portion of these requirements and we intend, and will be required, in the near term, to seek substantial additional equity-based or debt-based financing. The financings we seek after consummation of this offering may be on terms different from those offered hereby, which may prove less favorable or more favorable than those offered to investors in this offering. We may not be able to consummate additional offerings hereafter on commercially reasonable terms or at all, and may not be able to secure net proceeds in such additional offerings that in the aggregate meet our capital requirements. Upon consummation of this offering, substantial doubt about our ability to continue as a going concern may remain in the absence of such additional financings, and our existing resources and cash flow from operations may not meet our current obligations. If we are unable to consummate additional financing transactions for aggregate net proceeds that meet all of our requirements in the near term, we could be required to modify our operations, starting with a reduction or elimination of our portfolio expansion efforts, and, possibly, in due course, a reduction in the operation of existing hotel properties, divestitures of substantial assets or, ultimately, a cessation of operations in their entirety.

 

Our company will have discretion as to the allocation of net proceeds of this offering.

 

The net proceeds of this offering will be used for working capital and general corporate purposes. Any and all net proceeds of this offering will be allocated only with the consent of, and under the direction of, the Finance, Risk and Investment Committee of our board of directors. See “Use of Proceeds” on page S-18 of this prospectus supplement.

 

We may not be able to stabilize operations or achieve additional growth.

 

If the net proceeds of this offering and subsequent offerings is insufficient to fund all of our requirements, our company may not be able to stabilize our operations or fund future growth. Slower-than-expected growth, in turn, would reduce the amount of organic cash flow from operations available to us which could necessitate the need for our company to raise additional capital in the future beyond our current projected requirements.

 

 

You will experience immediate and substantial dilution in the net tangible book value per share of the common stock you purchase.

 

The offering price per share of our common stock being offered is substantially higher than the pro forma net tangible book value per share of our outstanding common stock. As a result, the investor purchasing shares of our common stock in this offering will incur immediate dilution of $[●] per share, after giving further effect to the sale by us of the shares of common stock offered hereby (with no exercise of the over-allotment option) and after deducting the underwriting discount and estimated offering expenses payable by us. See “Dilution” on page S-20 of this prospectus supplement for a more detailed discussion of the dilution you will incur if you purchase shares in this offering.

 

A substantial number of shares of our common stock may be sold in this offering, which could cause the price of our common stock to decline.

 

The shares of common stock offered hereby (with no exercise of the over-allotment option) represent approximately [●]% of our outstanding common stock as of [●], 2024 or [●]% giving effect to the issuance of the Greenle Shares. The sale of shares to be issued in this offering in the public market, or any future sales of a substantial number of shares of our common stock in the public market, or the perception that such sales may occur, could adversely affect the price of our common stock on the Nasdaq Capital Market. We cannot predict the effect, if any, that market sales of those shares of common stock or the availability of those shares of common stock for sale will have on the market price of our common stock.

 

We will require additional capital funding, the receipt of which may impair the value of our common stock.

 

Our existing and future capital requirements depend on many factors, including those discussed in our Annual Report on Form 10-K for the year ended December 31, 2023. We will need to raise additional capital through public or private equity or debt offerings or through arrangements with strategic partners or other sources in order to continue to fund our operations and growth. There can be no assurance that additional capital will be available when needed or on terms satisfactory to us, if at all. To the extent we raise additional capital by issuing equity securities, our stockholders may experience substantial dilution and the new equity securities may have greater rights, preferences or privileges than our existing common stock. To the extent we raise additional capital by issuing debt securities or through any credit or other debt-based facility, we may be required to pledge all or substantially all of our assets to secure our obligations with respect to such debt. The granting of such security interests would give the applicable lenders priority of claim to such assets and such assets would not be available for use to satisfy other obligations or to fund distributions to stockholders, including in an event of our company’s liquidation.

 

A portion of the indicated gross proceeds of this offering is funded through the forgiveness of a liability owed by our company to our founder and will not result in new cash to our company.

 

As previously disclosed in our Annual Report on Form 10-K for the year ended December 31, 2023, and other Exchange Act reports filed by our company, our former chairman and chief executive officer, and current director and consultant to our company, Brian Ferdinand, has been required by certain landlords, lenders, and other parties to provide personal guarantees in connection with certain leases and loans obtained by our company and in connection with certain transactions to which we are a party. While we expect to be able to eliminate the need for such guarantees in the future as our company grows, for so long as certain of these guarantees remain in place, our company is obligated to pay Mr. Ferdinand an annual lump sum of $1,200,000 through a cash contribution to a secular trust. Our company has not paid $703,500 of the amounts accrued and due for 2023 (the “Accrued Ferdinand Amount”). Mr. Ferdinand has elected to utilize the entirety of the Accrued Ferdinand Amount to fund a portion of his participation in this offering (with the remainder paid by him in cash). Accordingly, while the Accrued Ferdinand Amount is included in the aggregate gross proceeds of this offering, our company will not receive new cash, but will eliminate the liability for the Accrued Ferdinand Amount.

 

We may issue shares of our common and/or preferred stock in the future which could reduce the equity interest of our stockholders and might cause a change in control of our ownership.

 

Our certificate of incorporation currently authorizes the issuance of up to 90,000,000 shares of common stock, par value $0.00001 per share, of which 38,124,338 shares are outstanding as of the date of this prospectus supplement after giving effect to the Ferdinand Exchange, and 10,000,000 shares of preferred stock, par value $0.00001 per share, of which 294,144 shares are designated as 13.00% Series A perpetual redeemable preferred stock and outstanding as of the date of this prospectus supplement. In May 2024, our board of directors and the holders of a majority of our outstanding shares of common stock resolved by written consent (the “Written Charter Amendment Consent”) in lieu of meeting to amend our certificate of incorporation to increase our authorized capital stock from 100 million shares, comprised of 90 million shares of common stock and 10 million shares of preferred stock, to 220 million shares, comprised of 200 million shares of common stock and 20 million shares of preferred stock. The actions approved by the Written Charter Amendment Consent will become effective on the date that is twenty (20) calendar days after a definitive information statement is first mailed or otherwise delivered to holders of our common stock as of the applicable record date. We intend to file the preliminary information statement promptly following this offering.

 

 

Even after completion of this offering, we may issue a substantial number of additional shares of our common stock or preferred stock, or a combination of common and preferred stock, to raise additional funds or in connection with any strategic acquisitions. The issuance of additional shares of our common stock or any number of shares of our preferred stock:

 

●

may significantly reduce the equity interest of investors;

 

●

may subordinate the rights of holders of common stock if preferred stock is issued with rights senior to those afforded to our common stockholders;

 

●

may cause a change in control if a substantial number of our shares of common stock are issued, which may affect, among other things, our ability to use our net operating loss carryforwards, if any, and most likely also result in the resignation or removal of some or all of our present officers and directors; and

 

●

may adversely affect prevailing market prices for our common stock.

 

Our outstanding warrants and other convertible securities may have an adverse effect on the market price of our common stock.

 

As of the date of this prospectus supplement, we have outstanding securities that are exercisable for a substantial number of shares of our common stock, including: the Exchange Warrants exercisable into an aggregate of 7,500,000 shares of our common stock at an exercise price of $0.01 per share, other warrants exercisable into an aggregate of 3,992,000 shares of our common stock at an average exercise price of $[●], and options exercisable into an aggregate of 1,717,635 shares of our common stock at an average exercise price of $[●]. In addition, we are obligated to issue, from time to time, without payment of further consideration to our company, up to an aggregate of 10,140,000 Greenle Shares. Although the exercise of the Exchange Warrants and 3,000,000 of the other warrants, and the demand by Greenle for 3,000,000 of the Greenle shares are not permitted by the holders thereof until the Charter Amendment to increase our authorized capital stock is effective as described above under “Prospectus Supplement Summary – Corporate Information,” the Charter Amendment has been approved by the required vote of the board and the holders of our common stock.

 

The issuance of these shares will dilute our other equity holders, which could cause the price of our common stock to decline. In addition, the sale of these shares in the public market, or the perception that such sales may occur, could adversely affect the price of our common stock.

 

 

NOTE ON FORWARD-LOOKING STATEMENTS

 

All statements, other than statements of historical facts, contained in this prospectus supplement, and in the documents incorporated by reference in this prospectus supplement, including statements regarding our future results of operations and financial position, business strategy and plans and objectives of management for future operations, are forward-looking statements. The words “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “target,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,” “potential” or “continue” or the negative of these terms or other similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Forward-looking statements are not guarantees of future performance and our actual results may differ significantly from the results discussed in the forward-looking statements. Factors that might cause such differences include, but are not limited to, those discussed or incorporated by reference in “Risk Factors.”

 

Forward-looking statements may include, for example, statements about:

 

●

our financial performance, including our ability to generate revenue;

 

●

our ability to secure additional equity and/or debt financings and continue as a going concern;

 

●

the potential effects on our business from pandemics, such as those experienced during the COVID-19;

 

●

the potential effects of a challenging economy, for example, on the demand for vacation travel accommodations such as ours;

 

●

the ability of our short-stay accommodation offerings to achieve and sustain market acceptance across multiple cities throughout the United States and internationally;

 

●

the impact of increased competition;

 

●

the need to geographically centralize principal operations.

 

●

our efforts to identify, recruit and retain qualified officers, key employees, and directors possessing experience in the hotel and online travel services industries;

 

●

our ability to service our existing indebtedness and Series A Preferred Stock dividend and to obtain additional financing, including through the issuance of equity and debt, when and as needed on commercially reasonable terms;

 

●

our ability to protect our intellectual property;

 

●

our ability to complete strategic acquisitions, including joint ventures;

 

●

the need to obtain uninterrupted service from the third-party service providers we rely on for material aspects of our operations, including payment processing, data collection and security, online reservations, and booking and other technology services;

 

●

the effects of employment, labor union, and customer related litigations and disputes that may arise from time to time in the course of our operations and our efforts to minimize and resolve same;

 

 

●

the liquidity and trading of our securities;

 

●

regulatory and operational risks;

 

●

our estimates regarding expenses, future revenue, capital requirements and needs for additional financing; and

 

●

the time during which we will be an Emerging Growth Company (“EGC”) under the Jumpstart Our Business Startups Act of 2012, or JOBS Act.

 

In addition, our forward-looking statements do not reflect the potential impact of any future financings, acquisitions, mergers, dispositions, joint ventures or investments we may make.

 

We may not actually achieve the plans, intentions, and/or expectations disclosed in our forward-looking statements, and you should not rely unduly on our forward-looking statements. You should read this prospectus supplement and the accompanying base prospectus, and the documents incorporated by reference herein and therein, completely and with the understanding our actual future results may be materially different from what we expect. We do not assume any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law.

 

 

USE OF PROCEEDS

 

We estimate that the net proceeds to us from the sale of the shares in this offering, after giving effect to application of the Accrued Ferdinand Amount to fund a portion of the purchase by Mr. Ferdinand or an affiliate thereof, will be $[●] (with no exercise of the over-allotment option) or $[●] (with full exercise of the over-allotment option), after deducting the aggregate underwriting discount and other estimated offering expenses payable by us.

 

We will use the net proceeds from the sale of our common stock in this offering for working capital and general corporate purposes, including to service existing obligations.

 

Any and all net proceeds of this offering will be allocated only with the consent, and under the direction of, the Finance, Risk and Investment Committee of our board of directors. Such committee will have broad discretion in such allocation. We will be required to raise additional capital through equity or debt financings in the near term to meet our capital requirements.

 

In the event that any net proceeds are not immediately applied, we may temporarily hold them as cash, deposit them in banks or invest them in cash and cash equivalents.

 

 

CAPITALIZATION

 

The following table sets forth our cash position and capitalization as of March 31, 2024, as follows:

 

●

on an unaudited historical actual basis,

 

●

on an unaudited pro forma basis to give effect to issuances of our common stock after March 31, 2024,

 

●

On an unaudited pro forma basis to give effect to the Ferdinand Exchange (and issuance of the Ferdinand Warrants) and potential issuances of the Greenle Shares that are not subject to the Greenle Reserve Termination; and

 

●

on an unaudited pro forma as adjusted basis, after giving further effect to the sale by us of the shares of common stock offered hereby (with no exercise of the over-allotment option) and after deducting the underwriting discount and estimated offering expenses payable by us.

 

You should read this table together with our consolidated financial statements and notes thereto incorporated by reference in this prospectus supplement from our SEC filings, including our annual report on Form 10-K for the fiscal year ended December 31, 2023 and our quarterly report on Form 10-Q for the three months ended March 31, 2024, as well as “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the other financial information included therein.

 

In Thousands of Dollars

Historical Actual

Pro Forma Issuances After 3/31/24

Pro Forma Ferdinand Exchange and Potential Greenle Issuances Not Subject to Greenle Reserve Termination

Pro Forma As Adjusted

(unaudited)

(unaudited)

(unaudited)

Assets:

Cash

$

$

[●]

$

[●]

$

[●]

Total assets

$

$

[●]

$

[●]

$

[●]

Liabilities:

Total liabilities

$

$

[●]

$

[●]

$

[●]

Stockholders’ Equity (Deficit):

Preferred stock, par value $0.00001, 10,000,000 shares authorized; 294,144 shares of 13.00% Series A Perpetual Preferred Stock issued and outstanding (actual, pro forma, and pro forma as adjusted), as of March 31, 2023

$

$

[●]

$

[●]

$

[●]

Common stock, par value $0.00001; 90,000,000 shares authorized, 41,839,361 shares issued and outstanding (actual), 45,624,336 shares issued and outstanding (pro forma issuance after 3/31/24), 38,124,338 shares issued and outstanding (pro forma Ferdinand Exchange and potential issuances of Greene Shares that are not subject to Greenle Reserve Waiver, and ________ shares issued and outstanding (pro forma as adjusted), as of March 31, 2023

[●]

[●]

[●]

Additional paid-in capital

[●]

[●]

[●]

Accumulated deficit

[●]

[●]

[●]

Total stockholders’ deficit

$

$

[●]

$

[●]

$

[●]

Total stockholders’ deficit

$

$

[●]

$

[●]

$

[●]

 

The foregoing table does not take into account the exercise of our warrants or options, as set forth in footnote 1 in “Prospectus Supplement Summary – The Offering” and does not give effect to the issuance of 4,140,000 Greenle Shares that are not subject to the Greenle Reserve Termination.

 

 

DILUTION

 

If you invest in our shares, your ownership interest will be diluted to the extent of the difference between the price you paid per share of common stock in this offering and the net tangible book value per share of our common stock after this offering. Net tangible book value per share represents total tangible assets less total liabilities, divided by the number of shares of our common stock outstanding.

 

Our unaudited historical actual net tangible book value as of March 31, 2024 was approximately $[●] million, or approximately $([●]) per share of our common stock issued and outstanding on an unaudited historical actual basis as of such date.

 

Our unaudited pro forma net tangible book value as of March 31, 2024 (after giving effect to issuances of common stock after March 31, 2024) would have been approximately $[●] million, or approximately $[●] per share of our common stock.

 

Our unaudited pro forma net tangible book value as of March 31, 2024 (after giving effect to the Ferdinand Exchange (and issuance of the Ferdinand Warrants) and potential issuance of the Greenle Shares that are not subject to the Greenle Reserve Termination) would have been approximately $[●] million, or approximately $[●] per share of our common stock.

 

Our unaudited pro forma as adjusted net tangible book value as of March 31, 2024 would have been approximately $[●] million, or $[●] per share of our common stock, after giving further effect to the sale by us of the shares of common stock offered hereby (with no exercise of the over-allotment option and application of the Accrued Ferdinand Amount) and after deducting the underwriting discount and estimated offering expenses payable by us. This represents an immediate increase in net tangible book value of $[●] per share of our common stock to existing stockholders and an immediate dilution of $[●] per share of our common stock to new investors purchasing shares of our common stock in this offering.

 

The following table illustrates the dilution on a per share of common stock basis for investors purchasing shares of our common stock in this offering:

 

Public offering price per share in this offering						$	[●]
Pro forma net tangible book value per share (for post-3/31/24 issuances) as of March 31, 2024		$	[●]
Pro forma net tangible book value per share (for Ferdinand Exchange and potential Greenle Share issuances not subject to Greenle Reserve Termination) as of March 31, 2024
Increase in net tangible book value attributable to this offering		$	[●]
Pro forma as adjusted net tangible book value per share as of March 31, 2024						$	[●]
Dilution per share to new investors in this offering						$	[●]

 

Assuming the underwriter exercises its over-allotment option in full, the pro forma as adjusted increase in net tangible book value on March 31, 2024 would be $[●] per share and the dilution per share to new investors in this offering would be $[●] per share. In addition, if we issue additional shares of our common stock in the future, you may experience further dilution.

 

The per share calculations above are based the number of shares of our common stock issued and outstanding as of March 31, 2024, as follows: [●] shares on an unaudited historical actual basis, [●] shares on an unaudited pro forma basis (for post 3/31/24 issuances, [●] shares on an unaudited pro forma basis (for Ferdinand Exchange and potential Greenle issuances not subject to Greenle Reserve Termination), and [●] shares on an unaudited pro forma as adjusted basis, each as described above.

 

The foregoing table does not take into account the exercise of any warrants or options, as set forth in footnote 1 in “Prospectus Summary – The Offering.”

 

 

DESCRIPTION OF COMMON STOCK

 

Upon consummation of the offering, [●] shares of our common stock will be outstanding (with no exercise of the over-allotment option). In addition, as of the date of this prospectus supplement, we have Exchange Warrants exercisable into an aggregate of 7,500,000 shares at an exercise price of $0.01 per share, other warrants exercisable into an aggregate of 3,992,000 shares of our common stock at an average exercise price of $[●] per share, and options exercisable into an aggregate of 1,717,635 shares of our common stock at an average exercise price of $[●] per share, and are obligated to issue from time to time up to an aggregate of 10,140,000 Greenle Shares without further consideration to us. We are not obligated to issue an aggregate of 13,500,000 of the foregoing shares until the Charter Amendment increasing our authorized capital stock is effective as further described below. We presently are authorized to issue 90,000,000 shares of our common stock. For a more complete description of our common stock (and our outstanding 13.00% Series A perpetual redeemable preferred stock, which in certain circumstances is convertible into shares of our common stock) please see “Description of Capital Stock” in the accompanying base prospectus.

 

On May 16, 2024, our board of directors and the holders of a majority of our outstanding shares of common stock resolved by written consent (the “Written Charter Amendment Consent”) in lieu of meeting to amend our certificate of incorporation to increase our authorized capital stock from 100 million shares, comprised of 90 million shares of common stock and 10 million shares of preferred stock, to 220 million shares, comprised of 200 million shares of common stock and 20 million shares of preferred stock. The Written Charter Amendment Consent also authorizes an increase in the number of shares of common stock under our 2022 Incentive Equity Plan from 3 million shares to 8 million shares. Our management and board believe that these increases are required to provide our company with the ability to engage in necessary capital raising transactions to support our company’s working capital requirements and expansion efforts, strategic acquisitions, and the recruitment and retention of talented management and operational employees. We will file a preliminary information statement on Schedule 14C with respect to these actions and upon clearance with the Securities and Exchange Commission will file and mail to our stockholders a definitive information statement. Pursuant to Rule 14c-2(b) of the Securities Exchange Act, the actions approved by the Written Charter Amendment Consent will not become effective until the date that is twenty (20) calendar days after such definitive information statement is first mailed or otherwise delivered to holders of our common stock as of the applicable record date and we file the Charter Amendment with the State of Delaware. We intend to file the preliminary information statement promptly following this offering.

 

On May 17, 2024, we entered into an agreement with Greenle pursuant to which Greenle agreed (the “Greenle Reserve Termination”) to not exercise three million warrants it currently owns, or make demand for any Additional Greenle Waiver Shares, until the Charter Amendment to increase our authorized capital stock is effective. The reservation by our company of shares (aggregating six million shares) for issuance with respect thereto was terminated.

 

On May 17, 2024, THA Holdings LLC, an entity controlled and operated by Brian Ferdinand, our former Chief Executive Officer, entered into certain exchange agreement with the Company to contribute 7.5 million shares of common stock back to our company and same were deemed terminated in exchange (the “Ferdinand Exchange”) for common stock purchase warrants to purchase 7.5 million shares of our common stock (“Exchange Warrants”). The Exchange Warrants are for a term of ten years, exercisable at price per share of $0.01, and are not exercisable until the Charter Amendment to increase our authorized capital stock is effective.

 

 

UNDERWRITING

 

In connection with this offering, we plan to enter into an underwriting agreement (the “Underwriting Agreement”) with Roth Capital Partners, LLC, as the representative of the Underwriters (the “Representative”), in this offering. The Representative may retain other brokers or dealers to act as sub-agents or selected dealers on their behalf in connection with this offering. The Underwriters have agreed to purchase from us, on a firm commitment basis, the number of common stock set forth opposite its name below, at the offering price less the underwriting discounts set forth on the cover page of this prospectus supplement:

 

Underwriter		Number of Shares of Common Stock
Roth Capital Partners, LLC
Alexander Capital, LP
Total

 

The Underwriters are committed to purchase all of the common stock offered by this prospectus supplement if they purchase any common stock. The Underwriters are not obligated to purchase the common stock covered by the Underwriters’ over-allotment option to purchase common stock as described below. The Underwriters are offering the common stock, subject to prior sale, when, as and if issued to and accepted by them, subject to approval of legal matters by their counsel, and other conditions contained in the Underwriting Agreement, such as the receipt by the Underwriters of officer’s certificates and legal opinions. The Underwriters reserve the right to withdraw, cancel or modify offers to the public and to reject orders in whole or in part.

 

Certain of the Underwriters are expected to make offers and sales both inside and outside the U.S. through their respective selling agents. Any offers or sales in the U.S. will be conducted by broker-dealers registered with the SEC.

 

Over-Allotment Option

 

Pursuant to the Underwriting Agreement, we have agreed to grant to the Underwriters an option to purchase from us up to an additional [●] common stock, representing [●] of the common stock sold in the offering, solely to cover over-allotments, if any, at the $[●] per share. The Underwriters may exercise this option any time during the 45-day period after the closing date of the offering, but only to cover over-allotments, if any. To the extent the Underwriters exercise the option, the Underwriters will become obligated, subject to certain conditions, to purchase the shares for which they exercise the option.

 

Fees, Commissions and Expense Reimbursement

 

We will pay the Underwriters a fee/commission equivalent to seven percent (7%) of the gross proceeds of this offering. The Underwriters propose to offer the common stock to the public at the offering price set forth on the cover page of this prospectus supplement set forth on the cover page of this prospectus supplement. If all of the common stock offered by us are not sold at the offering price, the Underwriters may change the offering price and other selling terms by means of a supplement to this prospectus supplement.

 

The following table shows the underwriting fees/commission payable to the Underwriters, assuming a public offering price of $[●] per share:

 

		Per Share				Total
Public offering price		$				$
Discounts and Commissions to Underwriters		$				$

 

 

We have agreed to reimburse the Representative for certain accountable expenses including the Representative’s legal fees, background check expenses, and all other expenses related to the offering if there is a closing, in an amount not to exceed $100,000. If there is not a closing due to the termination of the Underwriting Agreement by the Underwriters, the Company will reimburse the Underwriters for all out-of-pocket disbursements (including, but not limited to, reasonable fees and disbursements of counsel, travel expenses, postage, facsimile and telephone charges) incurred by the Underwriters in connection with its investigation, preparing to market and marketing the Shares or in contemplation of performing its obligations hereunder, in an amount not to exceed $50,000.

 

We estimate that the total expenses payable by us in connection with the offering, other than the underwriting fee and reimbursement, will be approximately $[●].

 

We have agreed to issue to the Representative and to register herein warrants to purchase up to [●] common stock (equal to six percent (6%), including shares issued pursuant to the exercise of the over-allotment option of the common stock sold in this offering) and registered under the name of the Representative (or its designees) (the “Representative Warrants”). The Representative Warrants may be exercised at any time, and from time to time, in whole or in part, commencing from and after the 181th day immediately following the closing of this offering and expiring at the fifth anniversary of the closing of this offering. The Representative Warrants are exercisable at a per share price of 110% of the public offering price of the common stock offered hereby. The Representative Warrants shall not be callable or cancellable. No person or entity has the right to require registration of the underlying common stock within 180 days of the date hereof because of the filing or effectiveness of this prospectus supplement or otherwise, except for persons and entities who have expressly waived such right in writing or who have been given timely and proper written notice and have failed to exercise such right within the time or times required under the terms and conditions of such right.

 

The Representative Warrants may not be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of 180 days immediately following the commencement of sales of the offering, of which this prospectus supplement forms a part (in accordance with FINRA Rule 5110), except that they may be assigned, in whole or in part, to any successor, officer, manager, member, or partner of the Representative, and to members of the syndicate or selling group and their respective officers, managers, members or partners. The Representative Warrants may be exercised as to all or a lesser number of shares and will provide for cashless exercise. We have registered the common stock underlying the Representative Warrants in this offering.

 

The Underwriters intend to offer our common stock to their retail customers only in states in which we are permitted to offer our common stock. We have relied on an exemption to the blue-sky registration requirements afforded to “covered securities.” Securities listed on a National Securities Exchange are “covered securities.” If we were unable to meet listing standards of a National Securities Exchange, we would be unable to rely on the covered securities exemption to blue sky registration requirements. In such case, we would need to register the offering in each state in which we planned to sell shares. Consequently, we will not complete this offering unless we meet a National Securities Exchange’s listing requirements and our application to list on the exchange is approved.

 

The foregoing does not purport to be a complete statement of the terms and conditions of the Underwriting Agreement. A form of the Underwriting Agreement is included as an exhibit to the registration statement of which this prospectus supplement forms a part.

 

 

Financing Participation Right

 

Provided that either (i) the Representative raises at least $5,000,000 of gross proceeds from this offering (before deducting underwriting commissions, discounts and expenses) on behalf of the Company or (ii) the Company sells approximately 11 million shares of common stock in this offering such that the Company is no longer subject to “baby shelf” limitations (as set forth in SEC General Instruction I.B.3 and I.B.6 of Form S-3), the Representative shall have the right, for a period of twelve (12) months following the closing of this offering (a “Financing”), to participate, at a minimum, as lead book-running manager or lead placement agent, in any public offering or private placement of equity or equity-linked securities that the Company pursues with at least 70% of the economics of such Financing. In the event that Alexander Capital, LP raises gross proceeds on behalf of the Company in this offering of at least $5,000,000, Alexander Capital, LP shall have the right to participate in such Financing with at least 30% of the economics of such Financing.

 

Lock-Up Agreements

 

The Company has agreed in the Underwriting Agreement that, without the prior written consent of the Representative, each of the Company and any successors of the Company will not, for a period of 45 days from the date of this prospectus supplement, (i) offer, pledge, issue, sell, contract to sell, purchase, contract to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock; or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; or (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, other than an updated universal shelf registration statement so long as no sales can be made thereunder during such 45-day period.

 

In addition, each of our directors, officers and certain holders of 5% or more of common stock on a fully diluted basis immediately prior to the consummation of this offering has agreed that for a period of 90 days, without the prior written consent of the Representative, and subject to certain exceptions, they will not, directly or indirectly, (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, or file (or participate in the filing of) a registration statement with the Securities and Exchange Commission (other than one the Company is permitted by the Underwriting Agreement to file) in respect of, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock (including without limitation, shares of Common Stock which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant), (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the shares of, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of shares of Common Stock or such other securities, in cash or otherwise, (iii) make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for shares of Common Stock, or (iv) publicly announce an intention to effect any transaction specific in clause (i), (ii) or (iii) above.

 

Stabilization, Short Positions and Penalty Bids

 

In connection with the offering the Underwriters may engage in stabilizing transactions, over-allotment transactions, syndicate covering transactions, penalty bids and passive market making in accordance with Regulation M under the Exchange Act.

 

●

Stabilizing transactions permit the Underwriters to make bids or purchases for the purpose of pegging, fixing or maintaining the price of the common stock, so long as stabilizing bids do not exceed a specified maximum.

 

 

●

Over-allotment involves sales by the Underwriters of the common stock in excess of the number of common stock the Underwriters are obligated to purchase, which creates a syndicate short position. The short position may be either a covered short position or a naked short position. In a covered short position, the number of common stock over-allotted by the Underwriters is not greater than the number of common stock that they may purchase in the over-allotment option. In a naked short position, the number of common stock involved is greater than the number of common stock in the over-allotment option. The Underwriters may close out any covered short position by either exercising their over-allotment option and/or purchasing common stock in the open market.

 

●

Syndicate covering transactions involve purchases of common stock in the open market after the distribution has been completed in order to cover syndicate short positions. In determining the source of common stock to close out the short position, the Underwriters will consider, among other things, the price of our common stock available for purchase in the open market as compared to the price at which they may purchase common stock through the over-allotment option. If the Underwriters sell more common stock than could be covered by the over-allotment option, a naked short position, the position can only be closed out by buying common stock in the open market. A naked short position is more likely to be created if the Underwriters are concerned that there could be downward pressure on the price of the common stock in the open market after pricing that could adversely affect investors who purchase in the offering.

 

●

Penalty bids permit the Underwriters to reclaim a selling concession from a syndicate member when the common stock originally sold by the syndicate member are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.

 

●

In passive market making, market makers in the common stock who are the Underwriters or prospective Underwriter may, subject to limitations, make bids for or purchases of our common stock until the time, if any, at which a stabilizing bid is made.

 

These stabilizing transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price of the common stock or preventing or retarding a decline in the market price of common stock. As a result, the price of common stock may be higher than the price that might otherwise exist in the open market. These transactions may be effected on Nasdaq or otherwise, and, if commenced, may be discontinued at any time.

 

Determination of Offering Price

 

We determined the public offering price of the common stock we are offering in consultation with the Underwriter based on discussions with potential investors in light of the history and prospects of our Company, the stage of development of our business, our business plans for the future and the extent to which they have been implemented, an assessment of our management, the public stock price for similar companies, general conditions of the securities markets at the time of the offering and such other factors as were deemed relevant.

 

Electronic Offer, Sale and Distribution of Securities

 

A prospectus in electronic format may be delivered to potential investors by the Underwriter. The prospectus in electronic format will be identical to the paper version of such prospectus. Other than the prospectus in electronic format, the information on the Underwriter’ website and any information contained in any other website maintained by the Underwriter is not part of the prospectus or the registration statement of which this Prospectus forms a part.

 

 

Relationships

 

The Underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include the sales and trading of securities, commercial and investment banking, advisory, investment management, investment research, principal investment, hedging, market making, financing, brokerage and other financial and non-financial activities and services. The Underwriters and their respective affiliates may have, from time to time, performed, and may in the future perform, a variety of such activities and services for us and for persons or entities with relationships with us for which they received or will receive customary fees, commissions and expenses.

 

In the ordinary course of their various business activities, the Underwriters and their respective affiliates, directors, officers and employees may at any time purchase, sell or hold a broad array of investments, and actively traded securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments for their own accounts and for the accounts of their customers. Such investment and trading activities may involve or relate to our assets, securities and/or instruments (directly, as collateral securing other obligations or otherwise) and/or persons and entities with relationships with us. The Underwriters and their respective affiliates may also communicate independent investment recommendations, market color or trading ideas and/or publish or express independent research views in respect of such assets, securities or instruments. In addition, the Underwriters and their respective affiliates may at any time hold, or recommend to clients that they should acquire, long and short positions in such assets, securities and instruments.

 

Selling Restrictions

 

No action has been taken in any jurisdiction (except in the United States) that would permit a public offering of the common stock, or the possession, circulation or distribution of this prospectus supplement or any other material relating to us or the common stock, where action for that purpose is required. Accordingly, the common stock may not be offered or sold, directly or indirectly, and neither this prospectus supplement nor any other offering material or advertisements in connection with the common stock may be distributed or published, in or from any country or jurisdiction except in compliance with any applicable rules and regulations of any such country or jurisdiction.

 

Notice to Prospective Investors in Australia

 

This prospectus supplement:

 

●

does not constitute a product disclosure document or a prospectus under Chapter 6D.2 of the Corporations Act 2001 (Cth), or the Corporations Act;

 

●

has not been, and will not be, lodged with the Australian Securities and Investments Commission, or the ASIC, as a disclosure document for the purposes of the Corporations Act and does not purport to include the information required of a disclosure document under Chapter 6D.2 of the Corporations Act;

 

●

does not constitute or involve a recommendation to acquire, an offer or invitation for issue or sale, an offer or invitation to arrange the issue or sale, or an issue or sale, of interests to a “retail client” (as defined in section 761G of the Corporations Act and applicable regulations) in Australia; and

 

●

may only be provided in Australia to select investors who are able to demonstrate that they fall within one or more of the categories of investors, or Exempt Investors, available under section 708 of the Corporations Act.

 

 

The common stock may not be directly or indirectly offered for subscription or purchased or sold, and no invitations to subscribe for or buy the common stock may be issued, and no draft or definitive offering memorandum, advertisement or other offering material relating to any common stock may be distributed in Australia, except where disclosure to investors is not required under Chapter 6D of the Corporations Act or is otherwise in compliance with all applicable Australian laws and regulations. By submitting an application for the common stock, you represent and warrant to us that you are an Exempt Investor.

 

As any offer of common stock under this prospectus supplement will be made without disclosure in Australia under Chapter 6D.2 of the Corporations Act, the offer of those securities for resale in Australia within 12 months may, under section 707 of the Corporations Act, require disclosure to investors under Chapter 6D.2 if none of the exemptions in section 708 applies to that resale. By applying for the common stock you undertake to us that you will not, for a period of 12 months from the date of issue of the common stock, offer, transfer, assign or otherwise alienate those securities to investors in Australia except in circumstances where disclosure to investors is not required under Chapter 6D.2 of the Corporations Act or where a compliant disclosure document is prepared and lodged with ASIC.

 

Notice to Prospective Investors in Canada

 

Resale restrictions. The distribution of the common stock in Canada is being made only in the provinces of Ontario, Quebec, Alberta and British Columbia on a private placement basis exempt from the requirement that we prepare and file a prospectus supplement with the securities regulatory authorities in each province where trades of the common stock are made. Any resale of the common stock in Canada must be made under applicable securities laws which may vary depending on the relevant jurisdiction, and which may require resales to be made under available statutory exemptions or under a discretionary exemption granted by the applicable Canadian securities regulatory authority. Purchasers are advised to seek legal advice prior to any resale of the securities.

 

Representations of Canadian purchasers. By purchasing common stock in Canada and accepting delivery of a purchase confirmation, a purchaser is representing to us and the dealer from whom the purchase confirmation is received that:

 

●

the purchaser is entitled under applicable provincial securities laws to purchase the common stock without the benefit of a prospectus qualified under those securities laws as it is an “accredited investor” as defined under National Instrument 45-106—Prospectus Exemptions;

 

●

the purchaser is a “permitted client” as defined in National Instrument 31-103—Registration Requirements, Exemptions and Ongoing Registrant Obligations;

 

●

where required by law, the purchaser is purchasing as principal and not as agent; and

 

●

the purchaser has reviewed the text above under Resale Restrictions.

 

Conflicts of Interest. Canadian purchasers are hereby notified that the Underwriters are relying on the exemption set out in section 3A.3 or 3A.4, if applicable, of National Instrument 33-105—Underwriting Conflicts from having to provide certain conflict of interest disclosure in this prospectus supplement.

 

Statutory rights of action. Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if the offering memorandum (including any amendment thereto) such as this prospectus supplement contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser of these securities in Canada should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.

 

 

Enforcement of legal rights. All of our directors and officers as well as the experts named herein may be located outside of Canada and, as a result, it may not be possible for Canadian purchasers to effect service of process within Canada upon us or those persons. All or a substantial portion of our assets and the assets of those persons may be located outside of Canada and, as a result, it may not be possible to satisfy a judgment against us or those persons in Canada or to enforce a judgment obtained in Canadian courts against us or those persons outside of Canada.

 

Taxation and eligibility for investment. Canadian purchasers of common stock should consult their own legal and tax advisors with respect to the tax consequences of an investment in the common stock in their particular circumstances and about the eligibility of the common stock for investment by the purchaser under relevant Canadian legislation.

 

Notice to Prospective Investors in Cayman Islands

 

This prospectus supplement does not constitute a public offer of the common stock, whether by way of sale or subscription, in the Cayman Islands. The common stock have not been offered or sold, and will not be offered or sold, directly or indirectly, in the Cayman Islands.

 

Notice to Prospective Investors in Dubai International Financial Centre, or the DIFC

 

This prospectus supplement relates to an Exempt Offer of the Dubai Financial Services Authority, or the DFSA, in accordance with the Markets Rules 2012 of the DFSA. This prospectus supplement is intended for distribution only to persons of a type specified in the Markets Rules 2012 of the DFSA. It must not be delivered to, or relied on by, any other person. The DFSA has no responsibility for reviewing or verifying any documents in connection with Exempt Offers. The DFSA has not approved this prospectus supplement nor taken steps to verify the information set forth herein and has no responsibility for this prospectus supplement. The securities to which this prospectus supplement relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the securities offered should conduct their own due diligence on the securities. If you do not understand the contents of this prospectus supplement you should consult an authorized financial advisor.

 

In relation to its use in the DIFC, this prospectus supplement is strictly private and confidential and is being distributed to a limited number of investors and must not be provided to any person other than the original recipient, and may not be reproduced or used for any other purpose. The interests in the securities may not be offered or sold directly or indirectly to the public in the DIFC.

 

Notice to Prospective Investors in European Economic Area

 

In relation to each Member State of the European Economic Area (each, a Relevant State), no common stock have been offered or will be offered pursuant to the offering to the public in that Relevant State prior to the publication of a prospectus in relation to the common stock which has been approved by the competent authority in that Relevant State or, where appropriate, approved in another Relevant State and notified to the competent authority in that Relevant State, all in accordance with the Prospectus Regulation, except that offers of common stock may be made to the public in that Relevant State at any time under the following exemptions under the Prospectus Regulation:

 

●

to any legal entity which is a qualified investor as defined under the Prospectus Regulation;

 

●

to fewer than 150 natural or legal persons (other than qualified investors as defined under the Prospectus Regulation), subject to obtaining the prior consent of the Underwriters for any such offer; or

 

●

in any other circumstances falling within Article 1(4) of the Prospectus Regulation.

 

For the purposes of this provision, the expression an “offer to the public” in relation to any common stock in any Relevant State means the communication in any form and by any means of sufficient information on the terms of the offer and any common stock to be offered so as to enable an investor to decide to purchase or subscribe for any common stock, and the expression “Prospectus Regulation” means Regulation (EU) 2017/1129.

 

 

Notice to Prospective Investors in France

 

Neither this prospectus supplement nor any other offering material relating to the common stock described in this prospectus supplement has been submitted to the clearance procedures of the Autorité des Marchés Financiers or of the competent authority of another member state of the European Economic Area and notified to the Autorité des Marchés Financiers. The common stock have not been offered or sold and will not be offered or sold, directly or indirectly, to the public in France. Neither this prospectus supplement nor any other offering material relating to the common stock has been or will be:

 

●

released, issued, distributed or caused to be released, issued or distributed to the public in France; or

 

●

used in connection with any offer for subscription or sale of the common stock to the public in France.

 

Such offers, sales and distributions will be made in France only:

 

●

to qualified investors (investisseurs qualifiés) and/or to a restricted circle of investors (cercle restreint d’investisseurs), in each case investing for their own account, all as defined in, and in accordance with articles L.411-2, D.411-1, D.411-2, D.734-1, D.744-1, D.754-1 and D.764-1 of the FrenchCode monétaire et financier;

 

●

to investment services providers authorized to engage in portfolio management on behalf of third parties; or

 

●

in a transaction that, in accordance with article L.411-2-II-1° -or-2° -or 3° of the French Code monétaire et financier and article 211-2 of the General Regulations (Règlement Général) of the Autorité des Marchés Financiers, does not constitute a public offer (appel public à l’épargne).

 

The common stock may be resold directly or indirectly, only in compliance with articles L.411-1, L.411-2, L.412-1 and L.621-8 through L.621-8-3 of the French Code monétaire et financier.

 

Notice to Prospective Investors in Hong Kong

 

The common stock may not be offered or sold by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32, Laws of Hong Kong), (ii) to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) and any rules promulgated thereunder, or (iii) in other circumstances which do not result in the document being a “prospectus” within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32, Laws of Hong Kong), and no advertisement, invitation or document relating to the common stock may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to common stock which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules promulgated thereunder.

 

Notice to Prospective Investors in Japan

 

The common stock will not be offered or sold directly or indirectly in Japan or to, or for the benefit of any Japanese person or to others, for re-offering or re-sale directly or indirectly in Japan or to any Japanese person, except in each case pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Securities and Exchange Law of Japan and any other applicable laws, rules and regulations of Japan. For purposes of this paragraph, “Japanese person” means any person resident in Japan, including any corporation or other entity organized under the laws of Japan.

 

 

Notice to Prospective Investors in Kuwait

 

Unless all necessary approvals from the Kuwait Ministry of Commerce and Industry required by Law No. 31/1990 “Regulating the Negotiation of Securities and Establishment of Investment Funds,” its Executive Regulations and the various Ministerial Orders issued pursuant thereto or in connection therewith, have been given in relation to the marketing and sale of the common stock, these may not be marketed, offered for sale, nor sold in the State of Kuwait. Neither this prospectus supplement (including any related document), nor any of the information contained therein is intended to lead to the conclusion of any contract of whatsoever nature within Kuwait.

 

Investors in Kuwait who approach us or any of the Underwriters to obtain copies of this prospectus supplement are required by us and the Underwriters to keep such prospectus confidential and not to make copies thereof nor distribute the same to any other person in Kuwait and are also required to observe the restrictions provided for in all jurisdictions with respect to offering, marketing and the sale of the common stock.

 

Notice to Prospective Investors in People’s Republic of China

 

This prospectus supplement may not be circulated or distributed in the People’s Republic of China, or the PRC, and the common stock may not be offered or sold, and will not offer or sell to any person for re-offering or resale directly or indirectly to any resident of China except pursuant to applicable laws, rules and regulations of China. For the purpose of this paragraph only, China does not include Taiwan and the special administrative regions of Hong Kong and Macau.

 

Notice to Prospective Investors in Qatar

 

In the State of Qatar, the offer contained herein is made on an exclusive basis to the specifically intended recipient thereof, upon that person’s request and initiative, for personal use only and shall in no way be construed as a general offer for the sale of securities to the public or an attempt to do business as a bank, an investment company or otherwise in the State of Qatar. This prospectus supplement and the underlying securities have not been approved or licensed by the Qatar Central Bank or the Qatar Financial Centre Regulatory Authority or any other regulator in the State of Qatar. The information contained in this prospectus supplement shall only be shared with any third parties in Qatar on a need to know basis for the purpose of evaluating the contained offer. Any distribution of this prospectus supplement by the recipient to third parties in Qatar beyond the terms hereof is not permitted and shall be at the liability of such recipient.

 

Notice to Prospective Investors in Saudi Arabia

 

This prospectus supplement may not be distributed in the Kingdom of Saudi Arabia except to such persons as are permitted under the Offers of Securities Regulations issued by the Capital Market Authority. The Capital Market Authority does not make any representation as to the accuracy or completeness of this prospectus supplement, and expressly disclaims any liability whatsoever for any loss arising from, or incurred in reliance upon, any part of this prospectus supplement. Prospective purchasers of the securities offered hereby should conduct their own due diligence on the accuracy of the information relating to the securities. If you do not understand the contents of this prospectus supplement you should consult an authorized financial adviser.

 

Notice to Prospective Investors in Singapore

 

This prospectus supplement has not been registered as a prospectus in Singapore with the Monetary Authority of Singapore. Accordingly, this prospectus supplement and any other documents or material in connection with the offer or sale, or invitation for subscription or purchase, of the common stock may not be circulated or distributed, nor may the common stock be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore, or the SFA, or (ii) to a relevant person pursuant to Section 275(1), or to any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275, of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.

 

 

Where our common stock are subscribed or purchased under Section 275 of the SFA by a relevant person which is: (a) a corporation (which is not an accredited investor as defined in Section 4A of the SFA) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (b) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor; securities (as defined in Section 239(1) of the SFA) of that corporation or the beneficiaries’ rights and interest in that trust shall not be transferred within six months after that corporation or that trust has acquired the common stock under Section 275 of the SFA, except: (1) to an institutional investor (for corporations under Section 274 of the SFA) or to a relevant person defined in Section 275(2) of the SFA, or to any person pursuant to an offer that is made on terms that such shares, debentures and units of shares and debentures of that corporation or such rights and interest in that trust are acquired at a consideration of not less than S$200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities or other assets, and further for corporations, in accordance with the conditions, specified in Section 275 of the SFA; (2) where no consideration is or will be given for the transfer; or (3) where the transfer is by operation of law.

 

Notice to Prospective Investors in Switzerland

 

The common stock will not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange, or SIX, or on any other stock exchange or regulated trading facility in Switzerland. This prospectus supplement has been prepared without regard to the disclosure standards for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland. Neither this prospectus supplement nor any other offering or marketing material relating to our company or the common stock have been or will be filed with or approved by any Swiss regulatory authority. In particular, this prospectus supplement will not be filed with, and the offer of the common stock will not be supervised by, the Swiss Financial Market Supervisory Authority, and the offer of the common stock has not been and will not be authorized under the Swiss Federal Act on Collective Investment Schemes, or the CISA. The investor protection afforded to acquirers of interests in collective investment schemes under the CISA does not extend to acquirers of the common stock.

 

Notice to Prospective Investors in Taiwan

 

The common stock have not been and will not be registered with the Financial Supervisory Commission of Taiwan pursuant to relevant securities laws and regulations and may not be sold, issued or offered within Taiwan through a public offering or in circumstances which constitutes an offer within the meaning of the Securities and Exchange Act of Taiwan that requires a registration or approval of the Financial Supervisory Commission of Taiwan. No person or entity in Taiwan has been authorized to offer, sell, give advice regarding or otherwise intermediate the offering and sale of the common stock in Taiwan.

 

Notice to Prospective Investors in United Arab Emirates

 

The common stock have not been offered or sold, and will not be offered or sold, directly or indirectly, in the United Arab Emirates, except: (i) in compliance with all applicable laws and regulations of the United Arab Emirates; and (ii) through persons or corporate entities authorized and licensed to provide investment advice and/or engage in brokerage activity and/or trade in respect of foreign securities in the United Arab Emirates. The information contained in this prospectus supplement does not constitute a public offer of securities in the United Arab Emirates in accordance with the Commercial Companies Law (Federal Law No. 8 of 1984 (as amended)) or otherwise and is not intended to be a public offer and is addressed only to persons who are sophisticated investors.

 

 

Notice to Prospective Investors in United Kingdom

 

This prospectus supplement is only being distributed to and is only directed at: (i) persons who are outside the United Kingdom; (ii) investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, or the Order; or (iii) high net worth companies, and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (all such persons falling within (i)-(iii) together being referred to as “relevant persons”). The common stock are only available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire the common stock will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this prospectus supplement or any of its contents.

 

Indemnification

 

We have agreed to indemnify the Underwriters against liabilities relating to the offering arising under the Securities Act and the Exchange Act and to contribute to payments that the Underwriters may be required to make for these liabilities. In the opinion of the Securities and Exchange Commission, we have been advised that indemnification of liabilities under the Securities Act is against public policy as expressed in the Securities Act, and is therefore unenforceable.

 

Listing

 

Our common stock is listed on the Nasdaq under the symbol “LUXH” and our Series A preferred stock is listed on the Nasdaq under the symbol “LUXHP.”

 

Transfer Agent and Registrar

 

The transfer agent and registrar for our common stock and Series A preferred stock is Continental Stock Transfer & Trust Company located at 1 State Street, 30th Floor, New York, NY 10004.

 

 

LEGAL MATTERS

 

The validity of the securities offered will be passed upon for us by Graubard Miller, New York, New York. Pryor Cashman LLP, New York, New York, is acting as counsel for the underwriter in connection with this offering.

 

EXPERTS

 

The consolidated financial statements of LuxUrban Hotels Inc. as of and for the years ended December 31, 2023 and 2022, have been incorporated by reference here in reliance upon the report of Grassi & Co., CPAs, P.C., independent registered public accounting firm, upon the authority of said firm as experts in accounting and auditing.

 

WHERE YOU CAN FIND MORE INFORMATION

 

We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s web site at http://www.sec.gov. You may also read and copy any document we file with the SEC at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about the public reference room.

 

We have filed with the SEC a registration statement under the Securities Act relating to the offering of these securities. The registration statement, including the attached exhibits, contains additional relevant information about us and the securities. This prospectus supplement does not contain all of the information set forth in the registration statement. You can obtain a copy of the registration statement, at prescribed rates, from the SEC at the address listed above.

 

The registration statement and our SEC filings, including the documents referred to below under “Information Incorporated by Reference,” are also available on our website, www.luxurbanhotels.com. We have not incorporated by reference into this prospectus supplement the information on our website, and you should not consider it to be a part of this prospectus supplement.

 

 

INFORMATION INCORPORATED BY REFERENCE

 

The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. This prospectus incorporates by reference the documents listed below, and all filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the sale of all of the shares offered hereby:

 

	●	our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 15, 2024;
	●	our Quarterly Report on Form 10-Q for the three months ended March 31, 2024, filed with the SEC on May 13, 2024;
	●	our Current Reports on Form 8-K filed April 15, 2024, April 21, 2024 and May 1, 2024;

	●	the description of the Common Stock contained in our Registration Statement on Form 8-A/A (File No. 001-41473), filed with the SEC on August 10, 2022, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description; and
	●	the description of the Series A preferred stock contained in our Registration Statement on Form 8-A (File No. 001-41473), filed with the SEC on October 26, 2023, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.

 

Any statement contained in a document filed before the date of this prospectus and incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. Any information that we file after the date of this prospectus with the SEC and incorporated by reference herein will automatically update and supersede the information contained in this prospectus and in any document previously incorporated by reference in this prospectus. Notwithstanding the foregoing, we are not incorporating any document or portion thereof or information deemed to have been furnished and not filed in accordance with SEC rule.

 

We will provide you with a copy of any or all of the information that has been incorporated by reference in this prospectus, without charge, upon written or oral request directed to LuxUrban Hotels Inc., 2125 Biscayne Blvd, #253 Miami, FL 33137, telephone number 833-723-7368. You may also access the documents incorporated by reference as described under “Where You Can Find More Information.”

 

 

Prospectus

 

LUXURBAN HOTELS INC.

 

$50,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS

DeBt SECURITIES
UNITS

 

This prospectus will allow us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering, up to $50,000,000 in aggregate principal amount of our common stock, preferred stock, warrants, debt securities, and/or units comprised of one or more of the other classes of securities offered hereby in one or more offerings. We may offer these securities separately or together in units. We may also offer common stock or preferred stock upon conversion of or exchange for the common stock, preferred stock or debt securities, or upon the exercises of warrants.

 

This prospectus describes the general terms of the securities we may offer and the general manner in which these securities will be offered. We will provide you with the specific terms of any offering in one or more supplements to this prospectus. The prospectus supplements will specify the securities being offered and also describe the specific manner in which the securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus and any prospectus supplement, as well as any documents incorporated by reference into this prospectus or any prospectus supplement, carefully before you invest.

 

Our securities may be sold directly by us to you, through agents designated from time to time, or to or through underwriters or dealers. For additional information on the methods of sale, you should refer to the section titled “Plan of Distribution” in this prospectus and in the applicable prospectus supplement. If any underwriters or agents are involved in the sale of our securities with respect to which this prospectus is being delivered, the names of such underwriters or agents and any applicable fees, commissions or discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.

 

Our common stock is listed on the Nasdaq Capital Market, under the symbol “LUXH.” As of April 22, 2024, the aggregate market value of our public float, calculated according to General Instructions I.B.6. of Form S-3, is $19,609,220, based on 41,839,361 shares of common stock outstanding as of April 22, 2024, of which 21,033,165 shares of our common stock are held by non-affiliates.

 

Our Series A preferred stock is listed on the Nasdaq Stock Market LLC under the symbol “LUXHP”.

 

We have not offered any securities pursuant to General Instruction I.B.6. of Form S-3 during the prior 12-calendar-month period that ends on, and includes, the date of this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell our common stock in a public primary offering with a value that exceeds more than one-third of our public float in any 12-calendar-month period so long as our public float remains below $75,000,000.

 

Investing in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks that we have described on page 7 of this prospectus under the caption “Risk Factors.” We may include specific risk factors in supplements to this prospectus under the caption “Risk Factors.” This prospectus may not be used to sell our securities unless accompanied by a prospectus supplement.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

The date of this prospectus is May 8, 2024

 

 

TABLE OF CONTENTS

 

		Page
ABOUT THIS PROSPECTUS		1
PROSPECTUS SUMMARY		2
RISK FACTORS		7
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS		8
USE OF PROCEEDS		10
DESCRIPTION OF CAPITAL STOCK		11
DESCRIPTION OF WARRANTS		14
DESCRIPTION OF UNITS		23
PLAN OF DISTRIBUTION		25
LEGAL MATTERS		27
EXPERTS		27
WHERE YOU CAN FIND MORE INFORMATION		27
INCORPORATION OF INFORMATION BY REFERENCE		28

 

 

ABOUT THIS PROSPECTUS

 

This prospectus is part of a registration statement on Form S-3 (this “Registration Statement”) that we filed with the Securities and Exchange Commission (the “SEC”), utilizing a “shelf” registration process. Under this shelf registration process, we may offer shares of our common stock, preferred stock, warrants and/or debt securities, either individually or in units, in one or more offerings, with a total value of up to $50 million. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering.

 

This prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering of the securities, you should refer to the registration statement, including its exhibits. A prospectus supplement may also add, update or change information contained or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security the offering of which is not registered and described in this prospectus at the time of its effectiveness. This prospectus, together with the applicable prospectus supplements and the documents incorporated by reference into this prospectus, includes all material information relating to the offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, the information and documents incorporated herein by reference and the additional information under the heading “Where You Can Find More Information” before making an investment decision.

 

You should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained or incorporated by reference in this prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus or any prospectus supplement is accurate only as of the date on the front of the document and that any information we have incorporated herein by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any sale of a security.

 

We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in the accompanying prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.

 

This prospectus may not be used to consummate sales of our securities, unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies between any prospectus supplement, this prospectus and any documents incorporated by reference, the document with the most recent date will control.

 

Unless the context otherwise requires, “LuxUrban,” “our Company,” “we,” “us,” “our” and similar terms refer to LuxUrban Hotels Inc.

 

 

 

 

 

 

 

 

 

 

 

 

RISK FACTORS

 

Investing in our securities involves risks. You should carefully consider the risks, uncertainties and other factors described in our most recent Annual Report on Form 10-K, as supplemented and updated by subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K that we have filed or will file with the SEC, and in other documents that are incorporated by reference into this prospectus, as well as the risk factors and other information contained in or incorporated by reference into any accompanying prospectus supplement before investing in any of our securities. Our business, financial condition, results of operations, cash flows, or prospects could be materially and adversely affected by any of these risks. The risks and uncertainties described in the documents incorporated by reference herein are not the only risks and uncertainties that we or you may face. Additional risks and uncertainties not presently known to us or that we may deem currently immaterial may also impair our business operations or adversely affect our operations or financial condition.

 

For more information about our SEC filings, please see “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”

 

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

The statements contained in this prospectus and the information incorporated by reference in this prospectus that are not purely historical are forward-looking statements. Forward-looking statements include, but are not limited to, statements regarding expectations, hopes, beliefs, intentions, or strategies regarding the future. The forward-looking statements are contained principally in, but not limited to, “Item 1. Business,” “Item 1A. Risk Factors,” and “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” of our Annual Report on Form 10-K. Our periodic filings with the SEC and our future SEC reports may also contain forward-looking statements. 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 “anticipates,” “believes,” “continues,” “could,” “estimates,” “expects,” “intends,” “may,” “might,” “plans,” “possible,” “potential,” “predicts,” “projects,” “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 prospectus may include, for example, statements about.

 

	●	our financial performance, including our ability to generate revenue;
	●	the ability of our company to continue as a going concern absent access to equity, debt or other financing

 

●

our ability to secure additional leases for hotel properties on terms that will help drive profitability;

 

●

the potential effects on our business from pandemics, such as those experienced during the COVID-19;

 

●

the potential effects of a challenging economy, for example, on the demand for vacation travel accommodations such as ours;

 

●

the ability of our short-stay accommodation offerings to achieve and sustain market acceptance across multiple cities throughout the United States and internationally;

 

●

the impact of increased competition;

 

●

the need to geographically centralize principal operations.

 

●

our efforts to identify, recruit and retain qualified officers, key employees, and directors possessing experience in the hotel and online travel services industries;

 

●

our ability to service our existing indebtedness and Series A Preferred Stock dividend and to obtain additional financing, including through the issuance of equity and debt, when and as needed on commercially reasonable terms;

 

●

our ability to protect our intellectual property;

 

●

our ability to manage our relationships with the unions to which our hotel employees belong;

 

●

our ability to complete strategic acquisitions, including joint ventures;

 

●

the need to obtain uninterrupted service from the third-party service providers we rely on for material aspects of our operations, including payment processing, data collection and security, online reservations, and booking and other technology services;

 

●

the effects of employment, labor union, and customer related litigations and disputes that may arise from time to time in the course of our operations and our efforts to minimize and resolve same;

 

●

the liquidity and trading of our securities;

 

●

regulatory and operational risks;

 

 

●

our estimates regarding expenses, future revenue, capital requirements and needs for additional financing; and

 

●

the time during which we will be an Emerging Growth Company (“EGC”) under the Jumpstart Our Business Startups Act of 2012, or JOBS Act.

 

The forward-looking statements contained in this prospectus and the information incorporated by reference are based on current expectations and beliefs concerning future developments and their potential effects on us. There can be no assurance that future developments will be those that have been 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. These risks and uncertainties include, but are not limited to, those listed elsewhere in this prospectus, in our Annual Report on Form 10-K under “Item 1A. Risk Factors”, and the risks detailed in our periodic filings with the SEC and future SEC reports. 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.

 

Given these risks and uncertainties, investors are cautioned not to place undue reliance on such statements, which speak only as of the date of this prospectus. Our Company undertakes no obligation to publicly release any revisions to these forward-looking statements that may be made to reflect events or circumstances after the date of this prospectus.

 

 

USE OF PROCEEDS

 

We cannot assure you that we will receive any proceeds in connection with securities that may be offered pursuant to this prospectus. Unless otherwise indicated in the applicable prospectus supplement, we may use any net proceeds from the sale of securities under this prospectus to lease additional accommodation units and for working capital and general corporate purposes. As a result, our management will have broad discretion to allocate the net proceeds, if any, we receive in connection with securities offered pursuant to this prospectus for any purpose. Pending application of the net proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade, interest-bearing securities or apply them to the reduction of short-term indebtedness.

 

 

DESCRIPTION OF CAPITAL STOCK

 

Introduction

 

In the discussion that follows, we have summarized selected provisions of our certificate of incorporation, as amended (our “certificate of incorporation”), bylaws and the Delaware General Corporation Law(“DGCL”), relating to our capital stock. This summary does not purport to be complete. This discussion is subject to the relevant provisions of Delaware law and is qualified in its entirety by reference to our certificate of incorporation and our bylaws, copies of which have been filed as exhibits to the registration statement of which this prospectus is a part. You should read the provisions of our certificate of incorporation and our bylaws as currently in effect for provisions that may be important to you.

 

General

 

We are authorized to issue 90,000,000 shares of common stock, par value $0.00001, and 10,000,000 shares of preferred stock, par value $0.00001, of which 10,000,000 have been authorized and designated as our Series A Preferred Stock.

 

As of April 22, 2024, there were 41,839,361 shares of our common stock outstanding and 294,144 shares of our Series A Preferred Stock outstanding.

 

Common Stock

 

Voting Rights

 

Holders of shares of our common stock are entitled to one vote per share on all matters submitted to a vote of stockholders, unless otherwise required by law or our certificate of incorporation. See “Certain Anti-Takeover Provisions of our Certificate of Incorporation and By-Laws,” below. There is no cumulative voting with respect to the election of directors, with the result that the holders of more than 50% of the voting power voting for the election of directors can elect all of the directors.

 

Dividend Rights

 

All shares of our common stock shall be treated equally, identically and ratably, on a per share basis, with respect to any dividends or distributions as may be declared and paid from time to time by the board of directors out of any assets legally available therefor.

 

No Preemptive or Similar Rights

 

Our common stock is not entitled to preemptive rights and is not subject to conversion, redemption, or sinking fund provisions.

 

Right to Receive Liquidation Distributions

 

Subject to the preferential or other rights of any holders of preferred stock then outstanding, upon our dissolution, liquidation or winding up, whether voluntary or involuntary, holders of our common stock will be entitled to receive ratably all of our assets available for distribution to our stockholders unless disparate or different treatment of the shares of each such class of common stock with respect to distributions upon any such liquidation, dissolution or winding up is approved in advance by the affirmative vote (or written consent if action by written consent of stockholders is permitted at such time under our certificate of incorporation) of the holders of a majority of the outstanding shares of our common stock.

 

Merger or Consolidation

 

In the case of any distribution or payment in respect of the shares of our common stock upon our consolidation or merger with or into any other entity, or in the case of any other transaction having an effect on stockholders substantially similar to that resulting from a consolidation or merger, such distribution or payment shall be made ratably on a per share basis among the holders of our common stock.

 

 

Preferred Stock

 

Our certificate of incorporation authorizes our board of directors to establish one or more series of preferred stock. Unless required by law or any stock exchange, the authorized shares of preferred stock will be available for issuance without further action by the holders of our common stock. Our board of directors will have the discretion to determine, without stockholder approval and with respect to any series of preferred stock, the powers (including voting powers), preferences, and relative, participating, optional, or other special rights, and the qualifications, limitations, or restrictions thereof, including, without limitation:

 

●

the designation of the series;

 

●

the number of shares of the series, which our board of directors may, except where otherwise provided in the preferred stock designation, increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares then outstanding);

 

●

whether dividends, if any, will be cumulative or non-cumulative and the dividend rate of the series;

 

●

the dates at which dividends, if any, will be payable;

 

●

the redemption or repurchase rights and price or prices, if any, for shares of the series;

 

●

the terms and amounts of any sinking fund provided for the purchase or redemption of shares of the series;

 

●

the amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution, or winding-up of our affairs;

 

●

whether the shares of the series will be convertible into shares of any other class or series, or any other security, of us or any other entity, and, if so, the specification of the other class or series or other security, the conversion price or prices, or rate or rates, any rate adjustments, the date or dates as of which the shares will be convertible and all other terms and conditions upon which the conversion may be made;

 

●

restrictions on the issuance of shares of the same series or of any other class or series; and

 

●

the voting rights, if any, of the holders of the series.

 

We could authorize additional shares of our Series A Preferred Stock or authorize and designate other series of our preferred stock.

 

We could issue a series of preferred stock that could, depending on the terms of the series, impede or discourage an acquisition attempt or other transaction that some, or a majority, of the holders of our common stock might believe to be in their best interests or in which the holders of our common stock might receive a premium over the market price of the shares of our common stock. Additionally, the issuance of preferred stock may adversely affect the rights of holders of our common stock by restricting dividends on our common stock, diluting the voting power of our common stock or subordinating the liquidation rights of our common stock. As a result of these or other factors, the issuance of preferred stock could have an adverse impact on the market price of our common stock. We have no current plan for the issuance of any shares of preferred stock.

 

 

Certain Anti-Takeover Provisions of our Certificate of Incorporation and By-Laws

 

Special Meeting of Stockholders

 

Our bylaws provide that special meetings of stockholders may be called only by a majority vote of our board of directors, or by our chairman and chief executive officer or by our secretary at the request in writing of stockholders owning a majority of the voting power of our issued and outstanding capital stock.

 

Advance Notice Requirements for Stockholder Proposals and Director Nominations

 

Our bylaws provide that stockholders seeking to bring business before our annual meeting of stockholders, or to nominate candidates for election as directors at our annual meeting of stockholders must provide timely notice of their intent in writing. To be timely, a stockholder’s notice will need to be delivered to our principal executive offices not later than the close of business on the 60th day, nor earlier than the close of business on the 90th day, prior to the scheduled date of the annual meeting of stockholders. If less than 70 days’ notice or prior public disclosure of the date of the annual meeting of stockholders is given, a stockholder’s notice shall be timely if delivered to our principal executive offices not later than the 10th day following the day on which public announcement of the date of our annual meeting of stockholders is first made or sent by us. Our bylaws also specify certain requirements as to the form and content of our stockholders’ meetings. These provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders.

 

Removal and Appointment of Directors

 

Our entire board of directors or any individual director may be removed from office with or without cause by a majority vote of the outstanding voting power of the shares then entitled to vote at an election of directors. In such case, new directors may be elected by our stockholders then holding a majority of our voting power. As of the date of this prospectus, Brian Ferdinand, our chairman and co-chief executive officer, controls the majority of our voting power and therefore may unilaterally exercise the foregoing rights. We may in the future seek stockholder approval to amend our certificate of incorporation to implement a classified board comprised of three classes of directors, with only one class up for re-election at each annual meeting of our stockholders. A classified board would make it more difficult to replace the majority of our directors.

 

Exclusive Forum Selection

 

Article Eleventh of our certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of our Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees to our Company or our stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or our certificate of incorporation, or (iv) any action asserting a claim governed by the internal affairs doctrine shall be the Court of Chancery of the State of Delaware (or if the Court of Chancery does not have jurisdiction, another state court located within the State of Delaware, or if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware), in all cases subject to such court having personal jurisdiction over the indispensable parties named as defendants. While this provision is intended to include all actions, excluding any arising under the Securities Act, the Exchange Act and any other claim for which the federal courts have exclusive jurisdiction, there is uncertainty as to whether a court would enforce this provision.

 

Transfer Agent and Registrar

 

The transfer agent and registrar for our common stock and Series A Preferred Stock is Continental Stock Transfer & Trust Company.

 

Stock Market Listing

 

Our common stock is listed on The Nasdaq Capital Market under the symbol “LUXH” and our Series A Preferred Stock is listed on The Nasdaq Capital Market under the symbol “LUXHP.”

 

 

DESCRIPTION OF WARRANTS

 

General

 

We may offer warrants representing the right to purchase shares of our common stock or preferred stock. We may offer warrants separately or together with one or more additional warrants, shares of common stock, or shares of preferred stock, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each series of warrants will be issued under a separate warrant agreement to be entered into by us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the certificates relating to the series of warrants and will not assume any obligation or relationship of agency or trust for or with either any holders of warrants certificates or any beneficial owners of warrants. The following description sets forth certain general terms and provisions of warrants to which any prospectus supplement may relate. The particular terms of the warrants to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to such warrants will be described in the applicable prospectus supplement. To the extent that any particular terms of the warrants, warrant agreement, or warrant certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by such prospectus supplement. We encourage you to read the applicable warrant agreement and warrant certificate for additional information before you decide whether to purchase any of our warrants.

 

We will provide in a prospectus supplement the following terms of the warrants being offered:

 

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the specific designation and aggregate number of, and the price at which we will issue, the warrants;

 

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the currency or currency units in which the offering price, if any, and the exercise price are payable;

 

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the designation, amount, and terms of the securities purchasable upon exercise of the warrants;

 

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if applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon exercise of the warrants;

 

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if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise of the warrants, and a description of that series of our preferred stock;

 

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the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if the holder may not continuously exercise the warrants throughout that period, the specific date or dates on which the holder may exercise the warrants;

 

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whether the warrants will be issued in fully registered form or bearer form, in definitive or global form, or in any combination of these forms, although, in any case, the form of a warrant included in a unit (if applicable) will correspond to the form of the unit and of any security included in that unit;

 

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any material U.S. federal income tax considerations applicable to the warrants;

 

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the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents;

 

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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;

 

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if applicable, the date from and after which the warrants and the common stock or preferred stock (to the extent included together in a unit) will be separately transferable;

 

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if applicable, the minimum or maximum number of warrants that may be exercised at any one time;

 

 

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information with respect to book-entry procedures, if any;

 

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the anti-dilution provisions of the warrants, if any;

 

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any redemption or call provisions;

 

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whether the warrants may be sold separately or with other securities as parts of units (if applicable); and

 

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any additional terms of the warrants, including terms, procedures, and limitations relating to the exchange and exercise of the warrants.

 

Warrant Agent

 

The warrant agent for any warrants we offer will be set forth in the applicable prospectus supplement.

 

 

DESCRIPTION OF DEBT SECURITIES

 

We may offer any combination of senior debt securities or subordinated debt securities. We may issue the senior debt securities and the subordinated debt securities under separate indentures between us, as issuer, and the trustee or trustees identified in a prospectus supplement. Further information regarding the trustee may be provided in the prospectus supplement. The form for each type of indenture is filed as an exhibit to the registration statement of which this prospectus is a part.

 

The following outlines some of the general terms and provisions of the debt securities that we may issue. A prospectus supplement will describe the particular terms of any debt securities offered from time to time and may supplement or change the terms outlined below. We will file as an exhibit to the registration statement of which this prospectus is a part or will incorporate by reference from reports that we file with the SEC, a form of the indenture supplement that sets forth the terms of the particular debt securities we are offering. The summary of such debt securities contained in this prospectus and in the applicable prospectus supplement is qualified in its entirety by reference to the indentures and the applicable indenture supplement. We urge you to read the indentures, the applicable indenture supplement and the additional description of the debt securities in the prospectus supplement.

 

General

 

Within the total dollar amount of this shelf registration statement, we may issue an unlimited principal amount of debt securities in separate series. We may specify a maximum aggregate principal amount for the debt securities of any series. The debt securities will have terms that are consistent with the indentures. Senior debt securities will be unsubordinated obligations and will rank equal with all our other unsubordinated debt. Subordinated debt securities will be paid only if all payments due under our senior indebtedness, including any outstanding senior debt securities, have been made.

 

The indentures might not limit the amount of other debt that we may incur or whether that debt is senior to the debt securities offered by this prospectus and might not contain financial or similar restrictive covenants. The indentures might not contain any provision to protect holders of debt securities against a sudden or dramatic decline in our ability to pay our debt.

 

The prospectus supplement will describe the debt securities and the price or prices at which we will offer the debt securities. The description will include:

 

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the title and form of the debt securities;

 

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any limit on the aggregate principal amount of the debt securities or the series of which they are a part;

 

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the date or dates on which we must repay the principal, the maturity date and the principal amount due at maturity and whether the securities will be offered at a price such that they will be deemed an “original issue discount”;

 

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the person to whom any interest on a debt security of the series will be paid;

 

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the rate or rates at which the debt securities will bear interest;

 

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if any, the date or dates from which interest will accrue, and the dates on which we must pay interest;

 

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the place or places where we must pay the principal and any premium or interest on the debt securities;

 

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the terms and conditions on which we may redeem any debt security, if at all;

 

 

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any obligation to redeem or purchase any debt securities, and the terms and conditions on which we must do so;

 

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the denominations in which we may issue the debt securities;

 

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the currency in which we will pay the principal of and any premium or interest on the debt securities and whether we may pay in property other than cash, including our securities;

 

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the principal amount of the debt securities that we will pay upon declaration of acceleration of their maturity;

 

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whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;

 

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if applicable, that the debt securities are defeasible and the terms of such defeasance;

 

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if applicable, the terms of any right to convert debt securities into, or exchange debt securities for, debt securities, preferred stock and common stock or other securities or property;

 

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whether we will issue the debt securities in the form of one or more global securities and, if so, the respective depositaries for the global securities and the terms of the global securities;

 

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the subordination provisions that will apply to any subordinated debt securities;

 

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any addition to or change in the events of default applicable to the debt securities and any change in the right of the trustee or the holders to declare the principal amount of any of the debt securities due and payable;

 

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any addition to or change in the covenants in the indentures; and

 

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any other terms of the debt securities not inconsistent with the applicable indentures.

 

We may sell the debt securities at a substantial discount below their stated principal amount. We will describe U.S. federal income tax considerations, if any, applicable to debt securities sold at an original issue discount in the prospectus supplement. An “original issue discount security” is any debt security sold for less than its face value, and which provides that the holder cannot receive the full face-value if maturity is accelerated. The prospectus supplement relating to any original issue discount securities will describe the particular provisions relating to acceleration of the maturity upon the occurrence of an event of default. In addition, we will describe U.S. federal income tax or other considerations applicable to any debt securities that are denominated in a currency or unit other than U.S. dollars in the prospectus supplement.

 

Conversion and Exchange Rights

 

The prospectus supplement will describe, if applicable, the terms on which you may convert debt securities into or exchange them for debt securities, preferred stock and common stock or other securities or property. The conversion or exchange may be mandatory or may be at our option or at your option. The prospectus supplement will describe how the amount of debt securities, number of shares of preferred stock and common stock or other securities or property to be received upon conversion or exchange would be calculated.

 

 

Subordination of Subordinated Debt Securities

 

The indebtedness underlying any subordinated debt securities will be payable only if all payments due under our senior indebtedness, as defined in the applicable indenture and any indenture supplement, including any outstanding senior debt securities, have been made. If we distribute our assets to creditors upon any dissolution, winding-up, liquidation or reorganization or in bankruptcy, insolvency, receivership or similar proceedings, we must first pay all amounts due or to become due on all senior indebtedness before we pay the principal of, or any premium or interest on, the subordinated debt securities. In the event the subordinated debt securities are accelerated because of an event of default, we may not make any payment on the subordinated debt securities until we have paid all senior indebtedness or the acceleration is rescinded. If the payment of subordinated debt securities accelerates because of an event of default, we must promptly notify holders of senior indebtedness of the acceleration.

 

If we experience a bankruptcy, dissolution or reorganization, holders of senior indebtedness may receive more, ratably, and holders of subordinated debt securities may receive less, ratably, than our other creditors. The indenture for subordinated debt securities may not limit our ability to incur additional senior indebtedness.

 

Form, Exchange and Transfer

 

We will issue debt securities only in fully registered form, without coupons, and only in denominations of $1,000 and integral multiples thereof, unless the prospectus supplement provides otherwise. The holder of a debt security may elect, subject to the terms of the indentures and the limitations applicable to global securities, to exchange them for other debt securities of the same series of any authorized denomination and of similar terms and aggregate principal amount.

 

Holders of debt securities may present them for exchange as provided above or for registration of transfer, duly endorsed or with the form of transfer duly executed, at the office of the transfer agent we designate for that purpose. We will not impose a service charge for any registration of transfer or exchange of debt securities, but we may require a payment sufficient to cover any tax or other governmental charge payable in connection with the transfer or exchange. We will name the transfer agent in the prospectus supplement. We may designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, but we must maintain a transfer agent in each place where we will make payment on debt securities.

 

If we redeem the debt securities, we will not be required to issue, register the transfer of or exchange any debt security during a specified period prior to mailing a notice of redemption. We are not required to register the transfer or exchange of any debt security selected for redemption, except the unredeemed portion of the debt security being redeemed.

 

Global Securities

 

The debt securities may be represented, in whole or in part, by one or more global securities that will have an aggregate principal amount equal to that of all debt securities of that series. Each global security will be registered in the name of a depositary identified in the prospectus supplement. We will deposit the global security with the depositary or a custodian, and the global security will bear a legend regarding the restrictions on exchanges and registration of transfer.

 

No global security may be exchanged in whole or in part for debt securities registered, and no transfer of a global security in whole or in part may be registered, in the name of any person other than the depositary or any nominee or successor of the depositary unless:

 

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the depositary is unwilling or unable to continue as depositary; or

 

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the depositary is no longer in good standing under the Securities Exchange Act of 1934, as amended, or “Exchange Act,” or other applicable statute or regulation.

 

 

The depositary will determine how all securities issued in exchange for a global security will be registered.

 

As long as the depositary or its nominee is the registered holder of a global security, we will consider the depositary or the nominee to be the sole owner and holder of the global security and the underlying debt securities. Except as stated above, owners of beneficial interests in a global security will not be entitled to have the global security or any debt security registered in their names, will not receive physical delivery of certificated debt securities and will not be considered to be the owners or holders of the global security or underlying debt securities. We will make all payments of principal, premium and interest on a global security to the depositary or its nominee. The laws of some jurisdictions require that some purchasers of securities take physical delivery of such securities in definitive form. These laws may prevent you from transferring your beneficial interests in a global security.

 

Only institutions that have accounts with the depositary or its nominee and persons that hold beneficial interests through the depositary or its nominee may own beneficial interests in a global security. The depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of debt securities represented by the global security to the accounts of its participants. Ownership of beneficial interests in a global security will be shown only on, and the transfer of those ownership interests will be effected only through, records maintained by the depositary or any such participant.

 

The policies and procedures of the depositary may govern payments, transfers, exchanges and other matters relating to beneficial interests in a global security. We and the trustee will assume no responsibility or liability for any aspect of the depositary’s or any participant’s records relating to, or for payments made on account of, beneficial interests in a global security.

 

Payment and Paying Agents

 

We will pay principal and any premium or interest on a debt security to the person in whose name the debt security is registered at the close of business on the regular record date for such interest.

 

We will pay principal and any premium or interest on the debt securities at the office of our designated paying agent. Unless the prospectus supplement indicates otherwise, the corporate trust office of the trustee will be the paying agent for the debt securities.

 

Any other paying agents we designate for the debt securities of a particular series will be named in the prospectus supplement. We may designate additional paying agents, rescind the designation of any paying agent or approve a change in the office through which any paying agent acts, but we must maintain a paying agent in each place of payment for the debt securities.

 

The paying agent will return to us all money we pay to it for the payment of the principal, premium or interest on any debt security that remains unclaimed for a specified period. Thereafter, the holder may look only to us for payment, as an unsecured general creditor.

 

Consolidation, Merger and Sale of Assets

 

Under the terms of the indentures, so long as any securities remain outstanding, we may not consolidate or enter into a share exchange with or merge into any other person, in a transaction in which we are not the surviving corporation, or sell, convey, transfer or lease our properties and assets substantially as an entirety to any person, unless:

 

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the successor assumes our obligations under the debt securities and the indentures; and

 

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we meet the other conditions described in the indentures.

 

 

Events of Default

 

Each of the following will constitute an event of default under each indenture:

 

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failure to pay any interest on any debt security when due, for more than a specified number of days past the due date;

 

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failure to pay any principal or deposit any sinking fund payment when due;

 

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failure to perform any covenant or agreement in the indenture that continues for a specified number of days after written notice has been given by the trustee or the holders of a specified percentage in aggregate principal amount of the debt securities of that series;

 

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events of bankruptcy, insolvency or reorganization; and

 

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any other event of default specified in the prospectus supplement.

 

If an event of default occurs and continues, both the trustee and holders of a specified percentage in aggregate principal amount of the outstanding securities of that series may declare the principal amount of the debt securities of that series to be immediately due and payable. The holders of a majority in aggregate principal amount of the outstanding securities of that series may rescind and annul the acceleration if all events of default, other than the nonpayment of accelerated principal, have been cured or waived.

 

Except for its duties in case of an event of default, the trustee will not be obligated to exercise any of its rights or powers at the request or direction of any of the holders, unless the holders have offered the trustee reasonable indemnity. If they provide this indemnification and subject to conditions specified in the applicable indenture, the holders of a majority in aggregate principal amount of the outstanding securities of any series may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.

 

No holder of a debt security of any series may institute any proceeding with respect to the indentures, or for the appointment of a receiver or a trustee, or for any other remedy, unless:

 

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the holder has previously given the trustee written notice of a continuing event of default;

 

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the holders of a specified percentage in aggregate principal amount of the outstanding securities of that series have made a written request upon the trustee, and have offered reasonable indemnity to the trustee, to institute the proceeding;

 

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the trustee has failed to institute the proceeding for a specified period of time after its receipt of the notification; and

 

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the trustee has not received a direction inconsistent with the request within a specified number of days from the holders of a specified percentage in aggregate principal amount of the outstanding securities of that series.

 

Modification and Waiver

 

We and the trustee may change an indenture without the consent of any holders with respect to specific matters, including:

 

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to fix any ambiguity, defect or inconsistency in the indenture; and

 

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to change anything that does not materially adversely affect the interests of any holder of debt securities of any series.

 

 

In addition, under the indentures, the rights of holders of a series of notes may be changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, we and the trustee may only make the following changes with the consent of the holder of any outstanding debt securities affected:

 

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extending the fixed maturity of the series of notes;

 

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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption, of any debt securities; or

 

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reducing the percentage of debt securities the holders of which are required to consent to any amendment.

 

The holders of a majority in principal amount of the outstanding debt securities of any series may waive any past default under the indenture with respect to debt securities of that series, except a default in the payment of principal, premium or interest on any debt security of that series or in respect of a covenant or provision of the indenture that cannot be amended without each holder’s consent.

 

Except in limited circumstances, we may set any day as a record date for the purpose of determining the holders of outstanding debt securities of any series entitled to give or take any direction, notice, consent, waiver or other action under the indentures. In limited circumstances, the trustee may set a record date. To be effective, the action must be taken by holders of the requisite principal amount of such debt securities within a specified period following the record date.

 

Defeasance

 

To the extent stated in the prospectus supplement, we may elect to apply the provisions in the indentures relating to defeasance and discharge of indebtedness, or to defeasance of restrictive covenants, to the debt securities of any series. The indentures provide that, upon satisfaction of the requirements described below, we may terminate all of our obligations under the debt securities of any series and the applicable indenture, known as legal defeasance, other than our obligation:

 

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to maintain a registrar and paying agents and hold monies for payment in trust;

 

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to register the transfer or exchange of the notes; and

 

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to replace mutilated, destroyed, lost or stolen notes.

 

In addition, we may terminate our obligation to comply with any restrictive covenants under the debt securities of any series or the applicable indenture, known as covenant defeasance.

 

We may exercise our legal defeasance option even if we have previously exercised our covenant defeasance option. If we exercise either defeasance option, payment of the notes may not be accelerated because of the occurrence of events of default.

 

To exercise either defeasance option as to debt securities of any series, we must irrevocably deposit in trust with the trustee money and/or obligations backed by the full faith and credit of the United States that will provide money in an amount sufficient in the written opinion of a nationally recognized firm of independent public accountants to pay the principal of, premium, if any, and each installment of interest on the debt securities. We may only establish this trust if, among other things:

 

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no event of default shall have occurred or be continuing;

 

 

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in the case of legal defeasance, we have delivered to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the Internal Revenue Service a ruling or there has been a change in law, which in the opinion of our counsel, provides that holders of the debt securities will not recognize gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;

 

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in the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of the debt securities will not recognize gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred; and

 

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we satisfy other customary conditions precedent described in the applicable indenture.

 

Notices

 

We will mail notices to holders of debt securities as indicated in the prospectus supplement.

 

Title

 

We may treat the person in whose name a debt security is registered as the absolute owner, whether or not such debt security may be overdue, for the purpose of making payment and for all other purposes.

 

 

DESCRIPTION OF UNITS

 

The following description, together with the additional information that we include in any applicable prospectus supplements, summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.

 

We will incorporate by reference from reports that we file with the SEC the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summary of the material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series of units that we may offer under this prospectus, and the complete unit agreement and any supplemental agreements that contain the terms of such units. To the extent that any particular terms of the units or unit agreement described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by the applicable prospectus supplement.

 

General

 

We may offer units consisting of common stock or preferred stock or warrants for the purchase of common stock or preferred stock, in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each security included in the unit. The unit agreement under which a unit is issued may provide that the securities included in such unit may not be held or transferred separately, at any time or at any time before a specified date.

 

We will describe, in the applicable prospectus supplement, the terms of the series of units being offered, including:

 

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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;

 

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any provisions of the governing unit agreement;

 

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the price or prices at which such units will be issued;

 

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the material U.S. federal income tax considerations applicable to the units; and

 

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any provisions for the issuance, payment, settlement, transfer, or exchange of the units or of the securities comprising the units.

 

The provisions described in this section, as well as those set forth in any prospectus supplement or as described under “Description of Capital Stock” and “Description of Warrants” will apply to each unit, as applicable, and to any share of common stock, share of preferred stock or warrant included in each unit, as applicable.

 

Unit Agent

 

The name and address of the unit agent for any units we offer will be set forth in the applicable prospectus supplement.

 

 

Issuance in Series

 

We may issue units in such amounts and in such distinct series as we determine.

 

Enforceability of Rights by Holders of Units

 

Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of a unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder of any security included in the unit.

 

 

PLAN OF DISTRIBUTION

 

General Plan of Distribution

 

We may offer securities under this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell the securities (1) through underwriters or dealers, (2) through agents or (3) directly to one or more purchasers, or through a combination of such methods. We may distribute the securities from time to time in one or more transactions at:

 

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a fixed price or prices, which may be changed from time to time;

 

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market prices prevailing at the time of sale;

 

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prices related to the prevailing market prices; or

 

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negotiated prices.

 

We may directly solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit offers to purchase the securities from time to time. We will name in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.

 

If we utilize a dealer in the sale of the securities being offered by this prospectus, we will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.

 

If we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with the underwriter at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the underwriter will use to make re-sales of the securities to the public. In connection with the sale of the securities, we, or the purchasers of the securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers, and the underwriter may compensate those dealers in the form of discounts, concessions or commissions.

 

With respect to underwritten public offerings, negotiated transactions and block trades, we will provide in the applicable prospectus supplement information regarding any compensation we pay to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof.

 

We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth in the applicable prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.

 

Shares of our common stock or Series A preferred stock sold pursuant to the registration statement of which this prospectus is a part will be authorized for listing and trading on the Nasdaq Capital Market. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on the Nasdaq Capital Market or any securities market or other securities exchange of the securities covered by the prospectus supplement. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.

 

 

In order to facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing the applicable security in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if the securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.

 

In compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.

 

The underwriters, dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course of their business.

 

 

LEGAL MATTERS

 

The validity of the securities and certain other matters will be passed upon for us by Graubard Miller, New York, New York. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we name in the applicable prospectus supplement.

 

EXPERTS

 

The consolidated financial statements of LuxUrban Hotels Inc. as of and for the years ended December 31, 2023 and 2022, have been incorporated by reference here in reliance upon the report of Grassi & Co., CPAs, P.C., independent registered public accounting firm, upon the authority of said firm as experts in accounting and auditing.

 

WHERE YOU CAN FIND MORE INFORMATION

 

We are a reporting company and file annual, quarterly, and current reports, proxy statements and other information with the SEC. We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities we are offering under this prospectus. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities offered under this prospectus, we refer you to the registration statement and the exhibits filed as a part of the registration statement. The SEC maintains an Internet site that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC, including our Company. The SEC’s Internet site can be found at www.sec.gov. We maintain a website at https://luxurbanhotels.com. Information found on, or accessible through, our website is not a part of, and is not incorporated into, this prospectus, and you should not consider it part of this prospectus.

 

 

INCORPORATION OF INFORMATION BY REFERENCE

 

The SEC allows us to “incorporate by reference” information that we file with it. Incorporation by reference allows us to disclose important information to you by referring you to those other documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. This prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement and any prospectus supplement filed hereafter, including the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference. Copies of all or any part of the registration statement, including the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC listed above in “Where You Can Find More Information.” The documents we are incorporating by reference are:

 

●

our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 15, 2024;

 

	●	the description of the Common Stock contained in our Registration Statement on Form 8-A/A (File No. 001-41473), filed with the SEC on August 10, 2022, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description; and
	●	the description of the Series A preferred stock contained in our Registration Statement on Form 8-A (File No. 001-41473), filed with the SEC on October 28, 2023, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.

 

In addition, all documents that we file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents, except as to any document or portion of any document that is deemed furnished and not filed.

 

Pursuant to Rule 412 under the Securities Act, any statement contained in the documents incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified, superseded or replaced for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference in this Registration Statement modifies, supersedes or replaces such statement. Any such statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a part of this Registration Statement.

 

We will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus, other than exhibits to such documents unless such exhibits are specifically incorporated by reference into such documents. Requests should be directed to 2125 Biscayne Blvd, Suite 253, Miami, FL 33137, Attention: Secretary or by calling us at 833-723-7368.

 

 

 

 

 

 

 

 

 

 

 

 

LUXURBAN HOTELS INC.

 

$50,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS

DEBT
UNITS

 

 

 

 

 

PROSPECTUS

 

 

 

 

 

May 8, 2024

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[●] Shares

 

 

 

Common Stock

 

 

 

LuxUrban Inc.

LuxUrban Inc.

 

 

 

Prospectus Supplement

 

 

[●]

 

 

May [●], 2024

 

 

 

 

 

 

 

 

 

 

No dealer, salesperson or any other person is authorized to give any information or make any representations in connection with this offering other than those contained in this prospectus and, if given or made, the information or representations must not be relied upon as having been authorized by us. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any security other than the securities offered by this prospectus, or an offer to sell or a solicitation of an offer to buy any securities by anyone in any jurisdiction in which the offer or solicitation is not authorized or is unlawful.

 

 

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