As filed with the Securities and Exchange Commission on May 22, 2018

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

LM Funding AMERICA, Inc.

(Exact name of registrant as specified in its charter)

302 Knights Run Avenue, Suite 1000
Tampa, Florida 33602
Telephone No.: (813) 222-8996

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Richard Russell

Chief Financial Officer

302 Knights Run Avenue, Suite 1000

Tampa, Florida 33602

Telephone No.: (813) 222-8996

(Name, address including zip code, and telephone number, including area code, of agent for service)

Copies to:

Curt P. Creely, Esq.
Foley & Lardner LLP
100 North Tampa Street, Suite 2700
Tampa, Florida 33602
Telephone No.: (813) 229-2300
Facsimile No.:  (813) 221-4210

Approximate date of commencement of proposed sale to the public:  As soon as practicable after the effective date of this registration statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☑

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.    ☐

CALCULATION OF REGISTRATION FEE

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

The information in this prospectus is not complete and may be changed. The selling stockholder may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective.  This prospectus is not an offer to sell these securities and the selling stockholder is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

Subject to Completion dated MAY 22, 2018

1,321,032 Shares

Common Stock

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This prospectus relates to the sale of up to 1,321,032 shares of our common stock by ESOUSA Holdings, LLC, or ESOUSA Holdings.  ESOUSA Holdings is also referred to in this prospectus as the selling stockholder.  

We will not receive proceeds from the sale of the shares by the selling stockholder.  However, we may receive proceeds of up to $5.0 million from the sale of our common stock to the selling stockholder, pursuant to a common stock purchase agreement entered into with the selling stockholder on April 2, 2018, after the registration statement of which this prospectus is a part is declared effective. In addition, we may receive proceeds from the exercise of warrants held by the selling stockholder if the warrants are exercised other than pursuant to cashless exercise provisions of the warrants.  

The selling stockholder is an “underwriter” within the meaning of the Securities Act of 1933, as amended (the “Securities Act”).  We will pay the expenses of registering the shares of common stock described in this prospectus, but all selling and other expenses incurred by the selling stockholder will be paid by the selling stockholder.  See “Plan of Distribution.”  

Our common stock is listed on the NASDAQ Capital Market under the symbol “LMFA.”  On May 18, 2018, the last reported sale price of our common stock was $0.63 per share.

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

You should read this prospectus, together with additional information described under the headings “Incorporation of Certain Information by Reference” and “Where You Can Find More Information,” carefully before you invest in any of our securities.

Investing in our securities involves a high degree of risk.  See “RISK FACTORS” beginning on page 6 of this prospectus and in the documents incorporated by reference herein.

Neither the Securities and Exchange Commission (the “SEC”) 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.

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The date of this prospectus is [●], 2018.

TABLE OF CONTENTS

We incorporate by reference important information into this prospectus.  You may obtain the information incorporated by reference without charge by following the instructions under the section of this prospectus entitled “Where You Can Find More Information.”  You should carefully read this prospectus as well as additional information described under the section of this prospectus entitled “Incorporation of Certain Information by Reference,” before deciding to invest in our common shares.  

Neither we, nor the selling stockholder authorized anyone to provide any information or to make any representations other than those contained in, or incorporated by reference into, this prospectus. If anyone provides you with different or inconsistent information, you should not rely on it.  This prospectus is an offer to sell only the shares offered hereby, but only under the circumstances and in the jurisdictions where it is lawful to do so.  We are not, and the selling stockholder is not, making an offer of these securities in any jurisdiction where such offer is not permitted.  You should assume that the information contained in, or incorporated by reference into, this prospectus is accurate only as of the date of this prospectus or the date of the information incorporated by reference into this prospectus, regardless of the time of delivery of this prospectus or of any sale of our securities.  Our business, financial condition, results of operations and prospects may have changed since such dates.  

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Risk Factors

An investment in our securities involves a high degree of risk and many uncertainties. You should carefully consider the risk factors set forth below and the risk factors and all of the other information included in, or incorporated by reference into, this prospectus, including those risk factors included in our most recent Annual Report on Form 10-K, before purchasing securities in this offering. If any of these risks actually occur, our business, financial condition and results of operations would likely suffer and the trading price of our securities could fall, causing you to lose some or all of your investment in the securities we are offering.

Risks Related to this Offering

We may not be able to access the full amount available under the Common Stock Purchase Agreement, in which case we would need to raise additional capital to fund our operations, which may not be available when needed and on acceptable terms.

The extent to which we utilize the Common Stock Purchase Agreement with ESOUSA Holdings as a source of funding will depend on a number of factors, including the prevailing market price of our common stock, the volume of trading in our common stock and the extent to which we are able to secure funds from other sources. The number of shares that we may sell to ESOUSA Holdings under the Common Stock Purchase Agreement on any given day and during the term of the agreement is limited.  For example, under the rules of The NASDAQ Stock Market LLC, we may not issue more than 1,250,638 shares of our common stock pursuant to the Common Stock Purchase Agreement (including the Commitment Shares) and the conversion of the Note, which equals 19.99% of our outstanding shares of common stock as of the date of the Common Stock Purchase Agreement and the Note, unless stockholder approval is obtained to issue more than such 19.99%.  See “The ESOUSA Holdings Transaction” section of this prospectus for additional information. Additionally, we may not effect any sales of shares of our common stock under the Common Stock Purchase Agreement during the continuance of an event of default or on any trading day that the consolidated closing bid price of our common stock established by the Nasdaq Capital Market is less than $0.50 per share.  If we are unable to access the full $5.0 million under the Common Stock Purchase Agreement, we will need additional capital to fund our operations, which may not be available on acceptable terms or at all.  Our inability to access a portion or the full amount available under the Common Stock Purchase Agreement, in the absence of any other financing sources, could have a material adverse effect on our business.  

The sale of our common stock to ESOUSA Holdings may cause substantial dilution to our existing stockholders and the sale of the shares of common stock acquired by ESOUSA Holdings, or the perception that such sales may occur, could cause the price of our common stock to decline.

We are registering for sale 1,321,032 shares of our common stock, which includes the Conversion Shares, the Warrant Shares and shares that we may sell to ESOUSA Holdings under the Common Stock Purchase Agreement, including the Commitment Shares. It is anticipated that shares registered in this offering will be sold over a period of up to two years from the date of this prospectus. The number of shares ultimately offered for sale by ESOUSA Holdings under this prospectus depends upon the number of shares we elect to sell to ESOUSA Holdings under the Common Stock Purchase Agreement. Depending upon market liquidity at the time, sales of shares of our common stock under the Common Stock Purchase Agreement may cause the trading price of our common stock to decline.  We are not registering for sale pursuant to the registration statement of which this prospectus is a part all of the shares of our common stock issuable pursuant to the Common Stock Purchase Agreement.  In the event we elect to issue more shares under the Common Stock Purchase Agreement, we will be required to file a new registration statement and have it declared effective by the SEC.

ESOUSA Holdings may ultimately purchase all, some or none of the $5.0 million of common stock that, together with the Commitment Shares, the Conversion Shares and the Warrant Shares is the subject of this prospectus. ESOUSA Holdings may sell all, some or none of our shares that it holds or comes to hold under the Common Stock Purchase Agreement. Sales by ESOUSA Holdings of shares acquired pursuant to the Common Stock Purchase Agreement under the registration statement, of which this prospectus is a part, may result in dilution to the interests of other holders of our common stock. The sale of a substantial number of shares of our common stock by ESOUSA Holdings in this offering, or anticipation of such sales, could make it more difficult for us to sell equity or equity-related securities in the future at a time and at a price that we might otherwise wish to effect sales.

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Risks Related to Ownership of Our Common Stock

If our common stock is delisted from NASDAQ, the liquidity and price of our common stock could decrease and our ability to obtain financing could be impaired.

In order to maintain the listing of our common stock on the NASDAQ Capital Market, we must meet minimum financial and other requirements.  On April 20, 2018, we received a notice from NASDAQ indicating that we failed to maintain a minimum of $500,000 in net income from continuing operations in our most recently completed fiscal year, or in two of the last three fiscal years.  In accordance with NASDAQ Listing Rule 5810(c)(2)(A)(i), we intend to submit to NASDAQ on June 4, 2018, a plan to regain compliance.  If our plan is accepted, NASDAQ may grant an extension for us to regain compliance of up to 180 days from the date of the notice.  If our plan is not accepted by NASDAQ, or if we do not regain compliance, then we expect that NASDAQ will provide notice that our common stock is subject to delisting from the NASDAQ Capital Market, at which point we would have an opportunity to appeal the delisting determination to a NASDAQ hearings panel.

On May 8, 2018, we received an additional notice from NASDAQ stating that we are not in compliance with the requirement of NASDAQ Listing Rule 5550(a)(2) for continued listing on the NASDAQ Capital Market (the “Bid Price Rule”), as a result of the closing bid price of our common stock being below $1.00 per share for 30 consecutive business days.   In accordance with the NASDAQ Listing Rules, we have 180 calendar days, or until November 5, 2018, to regain compliance with the Bid Price Rule. To regain compliance, the closing bid price of our common stock must be at least $1.00 per share for a minimum of 10 consecutive business days.   If we are unable to regain compliance by November 5, 2018, we may be eligible for an additional 180-day period to demonstrate compliance with the Bid Price Rule. To qualify for the additional compliance period, we will be required to meet the continued listing requirement for market value of publicly held shares set forth in NASDAQ Listing Rule 5550(a) and all other initial listing standards set forth in NASDAQ Listing Rule 5505, with the exception of the Bid Price Rule, and will need to provide written notice to NASDAQ of our intention to cure the deficiency during the second compliance period.  If we do not qualify for the second compliance period or fail to regain compliance during the second 180-day period, then we expect that NASDAQ will provide notice that our common stock is subject to delisting from the NASDAQ Capital Market, at which point we would have an opportunity to appeal the delisting determination to a NASDAQ hearings panel.

Any delisting of our common stock from the NASDAQ Capital Market could adversely affect our ability to attract new investors, decrease the liquidity of our outstanding shares of common stock, reduce our ability to raise additional capital, reduce the price at which our common stock trades, and increase the transaction costs inherent in trading such shares with overall negative effects for our stockholders.  In addition, the delisting of our common stock could deter broker-dealers from making a market in or otherwise seeking or generating interest in our common stock, and might deter certain institutions and persons from investing in our securities at all.

A material weakness has been identified in our internal control over financial reporting. If we fail to implement and maintain effective internal control over financial reporting, our ability to accurately and timely report our financial results could be impaired, investors could lose confidence in our reported financial information, the trading price of our shares of common stock could decline and our access to the capital markets or other financing sources could become limited.

In preparing and reviewing our consolidated financial statements for the quarter ended March 31, 2018, we identified a material weakness in our internal control over financial reporting.  A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our financial statements will not be prevented or detected on a timely basis.  The material weakness identified related to our failure to effectively segregate certain accounting duties due to the small size of our accounting staff.  

We plan to engage additional internal accounting staff to assist with financial reporting; however, our ability to do this will depend on our having the economic resources to expand our staff.  If we fail to remediate the material weakness, we may be unable to accurately report our financial results, or report them within the timeframes required by law or stock exchange regulations. Failure to comply with Section 404 of the Sarbanes-Oxley Act could also potentially subject us to sanctions or investigations by the SEC or other regulatory authorities. We cannot assure you that we will be able to remediate the material weakness in a timely manner, or at all, or that in the future,

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additional material weaknesses will not exist or otherwise be discovered. If we fail to implement and maintain effective internal control over financial reporting, our ability to accurately and timely report our financial results could be impaired, which could result in late filings of our annual and quarterly reports under the Exchange Act, restatements of our consolidated financial statements or suspension or delisting of our common stock from The NASDAQ Stock Market, investors could lose confidence in our reported financial information, the trading price of our shares of common stock could decline and our access to the capital markets or other financing sources could become limited.

CAUTIONARY NOTE REGARDING Forward-Looking Statements

This prospectus and the documents incorporated by reference into this prospectus contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We have made these statements in reliance on the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical facts contained in, or incorporated by reference into, this prospectus, including statements regarding our future financial position, business strategy, budgets, projected revenues, projects costs and plans, and objectives of management for future operations are forward-looking statements. These statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements.

In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “target,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,” “potential,” “foresees” or “continue” or the negative of these terms or other similar expressions. The forward-looking statements in, or incorporated by reference into, this prospectus are only predictions. We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our business, financial condition and results of operations.  These forward-looking statements speak only as of the dates on which they are made and are subject to a number of risks and uncertainties including, without limitation, our ability to purchase defaulted consumer receivables at appropriate prices, competition to acquire such receivables, our ability to collect sufficient amounts of the consumer receivables that we purchase to operate profitably, our dependence upon third party law firms, including Business Law Group, P.A. to service our accounts, our ability to refinance our existing indebtedness, our ability to obtain funds to purchase receivables, our ability to manage growth or declines in the business, changes in government regulations that affect our ability to collect sufficient amounts on our defaulted consumer receivables, the impact of class action suits and other litigation on us, our investments in varying business ventures,  keeping software systems updated to operate our business, our ability to employ and retain qualified employees, the concentration of our accounts in Florida, our Chairman and Chief Executive Officer and his family may have significant influence over matters requiring approval of our stockholders, changes in the credit or capital markets, changes in interest rates, deterioration in economic conditions, and negative press regarding the debt collection industry which may have a negative impact on a debtor’s willingness to pay the debt we acquire, as well as other risks, uncertainties and assumptions described in, or incorporated by reference into, this prospectus , including the risks described under the heading “RISK FACTORS” in this prospectus and in our Annual Report on Form 10-K for the year ended December 31, 2017, which is incorporated by reference herein. Forward-looking statements are subject to inherent risks and uncertainties, some of which cannot be predicted or quantified and some of which are beyond our control. The events and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ materially from those projected in the forward-looking statements. Moreover, new risk factors and uncertainties may emerge from time to time, and it is not possible for management to predict all risk factors and uncertainties that we may face. Except as required by applicable law, we do not plan to publicly update or revise any forward-looking statements contained herein, whether as a result of any new information, future events, changed circumstances or otherwise.

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Use of Proceeds

The selling stockholder will receive all of the proceeds from the sale of the shares offered for sale by it under this prospectus. We will not receive proceeds from the sale of the shares by the selling stockholder. However, we may receive up to $5.0 million in proceeds from the sale of our common stock to the selling stockholder under the Common Stock Purchase Agreement with ESOUSA Holdings described in this prospectus. In addition, we may receive proceeds from the exercise of the Warrant if the Warrant is exercised other than pursuant to a cashless exercise.  Any proceeds from the selling stockholder that we receive under the Common Stock Purchase Agreement or from the exercise of the Warrant are expected be used for working capital and general corporate purposes.

The ESOUSA Holdings Transaction

General

On April 2, 2018, we entered into the Securities Purchase Agreement with ESOUSA Holdings pursuant to which we issued to ESOUSA Holdings the Note and Warrant. On April 2, 2018, we also entered into the Common Stock Purchase Agreement with ESOUSA Holdings, pursuant to which ESOUSA Holdings committed to purchase up to an aggregate of $5.0 million of our shares of common stock over the two-year term of the agreement.  Concurrently with entering into the Securities Purchase Agreement and the Common Stock Purchase Agreement, we entered into the Registration Rights Agreement with ESOUSA Holdings, pursuant to which we agreed to file one or more registration statements, including the registration statement of which this prospectus is a part, as permissible and necessary to register under the Securities Act, the sale of the shares that we may issue to ESOUSA Holdings pursuant to the Common Stock Purchase Agreement and upon conversion of the Note and exercise or exchange of the Warrant.  Accordingly, we are registering 1,321,032 shares of our common stock, which includes the Commitment Shares that will be issued to ESOUSA Holdings promptly after the SEC has declared effective the registration statement of which this prospectus is a part.  Under the Common Stock Purchase Agreement, we have the right but not the obligation to issue more than the 1,321,032 shares of common stock included in this prospectus to ESOUSA Holdings. In the event we elect to issue more shares under the Common Stock Purchase Agreement, we will be required to file a new registration statement to register the resale of such shares and have it declared effective by the SEC.

Securities Purchase Agreement, Note and Warrant

On April 2, 2018, we issued the Note pursuant to the Securities Purchase Agreement in the original principal amount of $500,000 together with the Warrant for an aggregate purchase price of $500,000.  The maturity date of the Note is six months following the date of issuance or October 2, 2018 (subject to acceleration upon an event of default).  ESOUSA Holdings may at any time on or after the maturity date convert all or any part of the outstanding and unpaid principal amount and accrued and unpaid interest of the Note into shares of the Company’s common stock, or the Conversion Shares, at a conversion price equal to 85% of the lowest daily volume-weighted average price of the Company’s common stock in the ten trading days immediately prior to conversion.  The Note will accrue interest at the rate of 10.5%, per annum, with accrued but unpaid interest being payable upon maturity of the Note.  

The Warrant issued to ESOUSA Holdings pursuant to the Securities Purchase Agreement is exercisable at the consolidated closing per share bid price of our common stock on April 2, 2018, which was $0.66, to purchase 400,000 shares of the Company’s common stock, or the Warrant Shares, subject to certain anti-dilution protection. The Warrant is exercisable at any time during the period commencing six months following April 2, 2018, or October 2, 2018, and ending at 5:30 p.m., New York time, on April 2, 2023, after which time the Warrant will terminate and no longer be outstanding. The Warrant may be exercised only for full shares of common stock.  We will not issue fractional shares of common stock or cash in lieu of fractional shares of common stock.  The Warrant may be exercised on a cashless basis only if the registration statement covering the Warrant Shares is no longer effective.  

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The number of Conversion Shares issuable upon conversion of the Note is subject to limitations under the Securities Purchase Agreement.  The Securities Purchase Agreement provides that the total number of Conversion Shares and any shares of common stock issued to ESOUSA Holdings pursuant to the Common Stock Purchase Agreement may not exceed 19.99% of our outstanding shares of common stock as of the date of the Securities Purchase Agreement, unless stockholder approval is obtained to issue more than such 19.99%.  In addition, neither ESOUSA Holdings nor its affiliates may acquire beneficial ownership of more than 9.9% of our outstanding voting securities.  

Registration Rights Agreement

Concurrently with entering into the Securities Purchase Agreement and the Common Stock Purchase Agreement, we entered into the Registration Rights Agreement with ESOUSA Holdings pursuant to which we agreed to file with the SEC one or more registration statements as necessary to register for sale under the Securities Act shares of common stock that we may issue to ESOUSA Holdings under the Common Stock Purchase Agreement and upon conversion of the Note and exercise or exchange of the Warrant. We agreed to file the initial registration statement covering the Conversion Shares, the Warrant Shares, the Commitment Shares and other shares of common stock issuable pursuant to the Common Stock Purchase Agreement by the 20th business day after we file our annual report on Form 10-K for our fiscal year ending December 31, 2017, or May 15, 2018 (the “Filing Deadline”) and cause such registration statement to be declared effective by the earlier of the 45th calendar day after the Filing Deadline (or in the event of a review by the SEC, the 90^th calendar day following the date of the Registration Rights Agreement or June 2, 2018) and the 5th business day after we are notified by the SEC that the Registration Statement will not be reviewed or will not be subject to further review. ESOUSA Holdings waived the Filing Deadline permitting us to file the initial registration statement on May 22, 2018, without penalty. The registration statement of which this prospectus is a part is the initial registration statement.  Subsequent registration statements required by the Registration Rights Agreement have similar deadlines for filing and effectiveness.

If (i) we fail to file any required registration statement before its filing deadline (a “Filing Failure”) or fail to cause any required registration statement to be declared effective on or before its effectiveness deadline (an “Effectiveness Failure”) or (ii) sales cannot be made pursuant to a required registration statement for more than 20 consecutive business days or more than an aggregate of 30 business days during any 12-month period (a “Maintenance Failure”), then we will be required to pay the selling stockholder an amount in cash or stock, for each month (or portion of a month) in which such delay shall occur, equal to one-and-one-half percent (1.5%) multiplied by the sum of $200,000 plus the outstanding principal and interest on the Note until the applicable failure has been cured or, if earlier, until the Commitment Shares, Conversion Shares and Warrant Shares are sold or are otherwise can be sold pursuant to Rule 144 without any restrictions.  Notwithstanding the foregoing, we will not be required to make more than six such payments as a result of a Filing Failure, an Effectiveness Failure or a Maintenance Failure.

Common Stock Purchase Agreement

Overview

On April 2, 2018, we entered into the Common Stock Purchase Agreement which provides that, upon the terms and subject to the conditions and limitations set forth therein, ESOUSA Holdings is committed to purchase up to an aggregate of $5.0 million of our shares of common stock over the two-year term of the Common Stock Purchase Agreement.  In consideration for entering into the Common Stock Purchase Agreement, we agreed to issue the Commitment Shares to ESOUSA Holdings upon the earlier of (i) on or one business day after the SEC has declared effective the registration statement of which this prospectus is a part or (ii) six months after the date of the Common Stock Purchase Agreement. The Commitment Shares will have a value equivalent to $200,000 calculated using the average of the volume-weighted average price for our common stock during the three trading day period immediately preceding the date of issuance of such shares.

Purchase Of Shares Under The Common Stock Purchase Agreement

After the SEC has declared effective the registration statement of which this prospectus is a part, on any trading day on which the consolidated closing bid price of our common stock established by the Nasdaq Capital Market exceeds $0.50, we have the right, in our sole discretion, to present ESOUSA Holdings with a purchase notice, directing ESOUSA Holdings (as principal) to purchase shares of our common stock equal to no more than

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15% of the trading volume of our common stock established by the Nasdaq Capital Market during normal trading hours for the five trading days immediately preceding the date of purchase at a purchase price equal to 87.5% of the lowest daily volume-weighted average trading price of our common stock established by the Nasdaq Capital Market during normal trading hours during the ten trading days immediately preceding the purchase date (the “Purchase Price”).  The Purchase Price will be adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split, or other similar transaction occurring during the period(s) used to compute the Purchase Price.  ESOUSA Holdings may not assign its rights or obligations under the Common Stock Purchase Agreement.  There are no limitations on use of proceeds in the Common Stock Purchase Agreement.  

Minimum Share Price

The Common Stock Purchase Agreement provides that the Company and ESOUSA Holdings shall not effect any sales under the Common Stock Purchase Agreement on any purchase date where the consolidated closing bid price of our common stock established by the Nasdaq Capital Market is less than $0.50 per share.

Limitations on Issuance of Shares

Under Rule 5635(d) of the Nasdaq Listing Rules, stockholder approval is generally required for situations covered by the “20 percent rule,” i.e., transactions (other than public offerings) involving:

In accordance with the 20 percent rule, the total number of Conversion Shares and shares of common stock that may be issued under the Common Stock Purchase Agreement, including the Commitment Shares, will be limited to 1,250,638 shares of our common stock (the “Exchange Cap”), which equals 19.99% of our outstanding shares of common stock as of the date of the Common Stock Purchase Agreement, unless stockholder approval is obtained to issue more than such 19.99%. The Exchange Cap will be adjusted for any stock dividend, stock split, reverse stock split, or similar transaction. The foregoing limitation will not apply if stockholder approval has not been obtained and at any time the Exchange Cap is reached and at all times thereafter the price paid for the Conversion Shares and all shares of our common stock issued under the Common Stock Purchase Agreement is equal to or greater than a price equal to the consolidated closing bid price of our common stock established by the Nasdaq Capital Market on the date of the Common Stock Purchase Agreement, or $0.66.  

We will not issue any shares of our common stock under the Common Stock Purchase Agreement if such shares proposed to be issued and sold, when aggregated with all other shares of our common stock then owned beneficially (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by ESOUSA Holdings and its affiliates would result in the beneficial ownership by ESOUSA Holdings and its affiliates of more than 9.9% of the then outstanding shares of our common stock.  In addition, ESOUSA Holdings will not be required to purchase any shares of our common stock if such sale would result in the beneficial ownership of ESOUSA Holdings exceeding 4.99% of the then outstanding shares of our common stock.

We may not issue any common stock (or securities convertible or exchangeable for common stock) during the 90-day period immediately before or after any purchase date under the Common Stock Purchase Agreement, other than (i) issuances pursuant to acquisitions, joint ventures, license arrangements, leasing arrangements and similar transactions, (ii) the exercise of preexisting rights under financing agreements and (iii) shares of common stock issued to affiliates, employees or consultants of the Company pursuant to an equity incentive plan of the Company.  In addition, the Company agreed that during the period when ESOUSA Holdings still owns the shares of our common stock issued to it under the Common Stock Purchase Agreement, the Company will not issue without the consent of ESOUSA Holdings any floating conversion rate or variable priced securities convertible into our common stock if such convertible securities shall have no floor price associated therewith.

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Events of Default

We may not require and ESOUSA Holdings will not be obligated to purchase any shares of our common stock under the Common Stock Purchase Agreement so long as any of the following events of default occurs and is continuing:

Our Termination Rights

The Common Stock Purchase Agreement may be terminated by us at any time, at our discretion, without any penalty or cost to us.

ESOUSA Holdings Termination Right

ESOUSA Holdings may, by delivering a written notice to the Company, terminate the Purchase Agreement  in connection with the following bankruptcy proceedings:  if we commence a voluntary insolvency or bankruptcy proceeding under bankruptcy law, consent to the entry of an order for relief against us in an involuntary bankruptcy case, a custodian is appointed for the Company or for all or substantially all of our and our subsidiaries’ property, or we make a general assignment for the benefit of our creditors.

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No Short-Selling or Hedging by ESOUSA Holdings

ESOUSA Holdings has agreed that neither it nor any of its agents, representatives and affiliates shall engage in any direct or indirect short-selling or hedging of our common stock during any time prior to the termination of the Common Stock Purchase Agreement.

Effect of Performance of the Common Stock Purchase Agreement on Our Stockholders

As of May 18, 2018, there were 6,253,189 shares of our common stock outstanding (3,967,065 shares held by non-affiliates) excluding the 1,321,032 shares offered hereby that will be issued or may be issuable to ESOUSA Holdings pursuant to the Common Stock Purchase Agreement, the Note and the Warrant. If all of such 1,321,032 shares of our common stock offered hereby were issued and outstanding as of May 18, 2018, such shares would represent 17.4% of the total common stock outstanding. The 1,321,032 shares being registered in this offering represent 33.3% of the outstanding shares of common stock held by non-affiliates as of May 18, 2018. The number of shares of our common stock ultimately offered for sale by ESOUSA Holdings depends upon the number of shares purchased by ESOUSA Holdings under the Common Stock Purchase Agreement.  

The Common Stock Purchase Agreement does not limit the ability of ESOUSA Holdings to sell any or all of the 1,321,032 shares registered in this offering. Other than the Commitment Shares, Conversion Shares and Warrant Shares, we anticipate that shares registered in this offering will be sold over a period of up to approximately two years from the date of this prospectus. The sale by ESOUSA Holdings of a significant amount of shares registered in this offering at any given time could cause the market price of our common stock to decline and/or to be highly volatile.  Other than the Commitment Shares, ESOUSA Holdings may ultimately purchase all, some or none of the 1,321,032 shares of common stock not yet issued but registered in this offering. After it has acquired such shares, it may sell all, some or none of such shares. Therefore, sales to ESOUSA Holdings by us pursuant to the Common Stock Purchase Agreement also may result in substantial dilution to the interests of other holders of our common stock. However, we have the right to control the timing and amount of future sales of our shares to ESOUSA Holdings (other than the Commitment Shares and the Warrant Shares) and the Common Stock Purchase Agreement may be terminated by us at any time at our discretion without any penalty or cost to us.

Actual sales of shares of our common stock to ESOUSA Holdings under the Common Stock Purchase Agreement will depend on a variety of factors to be determined by us from time to time, including, among others, market conditions, the trading price of our common stock and determinations by us as to the appropriate sources of funding for our company and our operations.  We do not know what the purchase price for our common stock will be and therefore cannot be certain as to the number of shares we might issue to ESOUSA Holdings under the Common Stock Purchase Agreement after the date of this prospectus.

Percentage of Outstanding Shares After Giving Effect to the Purchased Shares Issued to ESOUSA Holdings

Pursuant to the terms of the Common Stock Purchase Agreement, we have the right, but not the obligation, to direct ESOUSA Holdings to purchase up to $5 million of our common stock.  We have registered only a portion of the shares issuable under the Common Stock Purchase Agreement and, therefore, we may seek to issue and sell to ESOUSA Holdings under the Common Stock Purchase Agreement more shares of our common stock than are offered under this prospectus.  If we choose to do so, we must first register for resale under the Securities Act any such additional shares, which could cause additional substantial dilution to our stockholders.  The number of shares ultimately offered for resale by ESOUSA Holdings under this prospectus depends upon the number of shares we direct ESOUSA Holdings to purchase under the Common Stock Purchase Agreement.

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We currently estimate that we will sell no more than 1,321,032 shares to ESOUSA Holdings under the Common Stock Purchase Agreement (including the Commitment Shares), all of which are included in this offering.  The number of shares of our common stock that we may sell to ESOUSA Holdings pursuant to the Common Stock Purchase Agreement in this offering will be further reduced by the number of Warrant Shares and Conversion Shares that we are required to have registered pursuant to the Registration Rights Agreement at the time of such sale.  The number of shares ultimately offered for sale by ESOUSA Holdings in this offering depends upon the number of shares purchased by ESOUSA Holdings under the Common Stock Purchase Agreement. The following table sets forth the number and percentage of outstanding shares to be held by ESOUSA Holdings after giving effect to the sale of shares of common stock issued to ESOUSA Holdings at varying purchase prices (assuming that ESOUSA Holdings is requested by the Company to purchase all shares registered in this offering pursuant to its purchase commitment in the Common Stock Purchase Agreement):

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SELLING STOCKHOLDER

The following table sets forth, as of the date of this prospectus, the name of the selling stockholder for whom we are registering shares for sale to the public, the number of shares of common stock beneficially owned by the selling stockholder prior to this offering, the total number of shares of common stock that the selling stockholder may offer pursuant to this prospectus and the number of shares of common stock that the selling stockholder will beneficially own after this offering.  The percentages in the table below reflect the shares beneficially owned by the selling stockholder as a percentage of the 6,253,189 shares of common stock outstanding as of May 18, 2018, adjusted as required by rules promulgated by the SEC. These rules attribute beneficial ownership of shares of common stock issuable upon conversion of convertible securities or upon exercise of warrants that are convertible or exercisable, as applicable, either immediately or on or before the date that is 60 days after May 18, 2018. These shares are deemed to be outstanding and beneficially owned by the person holding such convertible securities or warrants for the purpose of computing the percentage ownership of that person, but they are not treated as outstanding for the purpose of computing the percentage ownership of any other person.

The common shares being offered by the selling stockholder are those issuable to the selling stockholder pursuant to the Common Stock Purchase Agreement and upon conversion of the Note and exercise or exchange of the Warrant.  For additional information regarding the issuance of the common shares, the Note and the Warrant, see “The ESOUSA Holdings Transaction” above.  We are registering the common shares in order to permit the selling stockholder to offer the shares for resale from time to time.  

On December 11, 2017, the Company entered into an Exchange Agreement with the selling stockholder.  Prior to entering into the Exchange Agreement, the selling stockholder acquired two of the Company’s term notes having aggregate principal and interest outstanding of $4,720,860.  Pursuant to the Exchange Agreement, the selling stockholder exchanged the promissory notes for an aggregate of 2,953,189 shares of the Company’s common stock.  Except for the ownership of the common shares issued pursuant to the Common Stock Purchase Agreement and the Note and the Warrant and the transaction pursuant to the Exchange Agreement described above, the selling stockholder has not had any material relationship with us within the past three years.  

Based on the information provided to us by the selling stockholder, the table below lists the selling stockholder and other information regarding the beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the common shares held the selling stockholder.  The second column lists the number of common shares beneficially owned by the selling stockholder, based on its ownership of common shares as of May 18, 2018, assuming conversion of the Note and exercise or exchange of the Warrant held by such selling stockholder on that date but taking account of any limitations on exercise or exchange set forth therein.

The third column lists the common shares being offered by this prospectus by the selling stockholder and does not take into account any limitations on (i) conversion of the Note set forth therein or (ii) exercise or exchange of the Warrant set forth therein.

In accordance with the terms of the Registration Rights Agreement with the selling stockholder, this prospectus generally covers the resale of the (i) common shares issued pursuant to the Common Stock Purchase Agreement, (ii) 150% of the common shares issued or issuable upon conversion of the Note at the conversion price thereunder and (ii) 150% of the initial number of shares issued and issuable pursuant to the Warrant (or the number of shares so issued and issuable as of the filing of the registration statement to which this prospectus relates, if more).  Because the conversion price of the Note and the exercise price of the Warrant may be adjusted, the number of shares that will actually be issued may be more or less than the number of shares being offered by this prospectus.  The fourth column assumes the sale of all of the shares offered by the selling stockholder pursuant to this prospectus.

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Under the terms of the Common Stock Purchase Agreement, Note and the Warrants, the selling stockholder may not purchase common shares, convert the Note or exercise or exchange the Warrants to the extent such selling stockholder or any of its affiliates would beneficially own a number of our common shares which would exceed 9.99%.  The number of shares in the second column reflects these limitations.  The selling stockholder may sell all, some or none of its shares in this offering.  See “Plan of Distribution.”

Based on the information provided to us by the selling stockholder, assuming that the selling stockholder sells all of the shares of our common stock beneficially owned by it that have been registered by us and does not acquire any additional shares during the offering, the selling stockholder will not own any shares other than those appearing in the column entitled “Beneficial Ownership After This Offering.” We cannot advise you as to whether the selling stockholder will in fact sell any or all of such shares of common stock. In addition, the selling stockholder may have sold, transferred or otherwise disposed of, or may sell, transfer or otherwise dispose of, at any time and from time to time, the shares of our common stock in transactions exempt from the registration requirements of the Securities Act after the date on which it provided the information set forth in the table below.

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PLAN OF DISTRIBUTION

We are registering the common shares issuable to the selling stockholder pursuant to the Common Stock Purchase Agreement and upon conversion of the Note and exercise or exchange of the Warrant to permit the resale of these common shares by the holders of the common shares, the Note and Warrant from time to time after the date of this prospectus.  We will not receive any of the proceeds from the sale by the selling stockholder of the common shares.  We will bear all fees and expenses incident to our obligation to register the common shares.

The selling stockholder may sell all or a portion of the common shares held by it and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the common shares are sold through underwriters or broker-dealers, the selling stockholder will be responsible for underwriting discounts or commissions or agent’s commissions.  The common shares may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale or at negotiated prices.  These sales may be effected in transactions, which may involve crosses or block transactions, pursuant to one or more of the following methods:

The selling stockholder may also sell common shares under Rule 144 promulgated under the Securities Act, if available, rather than under this prospectus.  In addition, the selling stockholder may transfer the common shares by other means not described in this prospectus.  If the selling stockholder effects such transactions by selling common shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholder or commissions from purchasers of the common shares for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved).  The selling stockholder may also loan or pledge common shares to broker-dealers that in turn may sell such shares.

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ESOUSA Holdings is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act.

The selling stockholder may pledge or grant a security interest in some or all of the Note, Warrant or common shares owned by it and, if the selling stockholder defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the common shares from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus.  The selling stockholder also may transfer and donate the common shares in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

To the extent required by the Securities Act and the rules and regulations thereunder, the selling stockholder and any broker-dealer participating in the distribution of the common shares may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act.  At the time a particular offering of the common shares is made, a prospectus supplement, if required, will be distributed, which will set forth the aggregate amount of common shares being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling shareholder and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.

Under the securities laws of some states, the common shares may be sold in such states only through registered or licensed brokers or dealers.  In addition, in some states the common shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.

There can be no assurance that the selling stockholder will sell any or all of the common shares registered pursuant to the registration statement, of which this prospectus forms a part.

The selling stockholder and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the common shares by the selling stockholder and any other participating person.  To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the common shares to engage in market-making activities with respect to the common shares.  All of the foregoing may affect the marketability of the common shares and the ability of any person or entity to engage in market-making activities with respect to the common shares.

We will pay all expenses of the registration of the common shares pursuant to the registration rights agreement, estimated to be $45,000 in total, including, without limitation, SEC filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, a selling stockholder will pay all underwriting discounts and selling commissions, if any.  We will indemnify the selling stockholder against liabilities, including some liabilities under the Securities Act in accordance with the registration rights agreements or the selling stockholder will be entitled to contribution.  We may be indemnified by the selling stockholder against civil liabilities, including liabilities under the Securities Act that may arise from any written information furnished to us by the selling stockholder specifically for use in this prospectus, in accordance with the related Registration Rights Agreements or we may be entitled to contribution.

Once sold under the registration statement, of which this prospectus forms a part, the common shares will be freely tradable in the hands of persons other than our affiliates.

Legal Matters

The validity of the securities offered by this prospectus will be passed upon for us by the law firm of Foley & Lardner LLP, Tampa, Florida.

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Experts

The consolidated financial statements incorporated by reference in this prospectus have been audited by Malone Bailey, LLP for the year ended December 31, 2017 and Skoda Minotti & Co., for the year ended December 31, 2016, independent registered public accounting firms, as stated in its report incorporated by reference herein in reliance upon the reports of such firms given upon their authority as experts in accounting and auditing.

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the shares of common stock being offered by this prospectus. This prospectus does not contain all of the information in the registration statement of which this prospectus is a part and the exhibits to such registration statement. For further information with respect to us and the common stock offered by this prospectus, we refer you to the registration statement of which this prospectus is a part and the exhibits to such registration statement. Statements contained in this prospectus as to the contents of any contract or any other document are not necessarily complete, and in each instance, we refer you to the copy of the contract or other document filed as an exhibit to the registration statement of which this prospectus is a part. Each of these statements is qualified in all respects by this reference.

You may read and copy the registration statement of which this prospectus is a part, as well as our reports, proxy statements and other information, 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 more information about the operation of the Public Reference Room. 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 LM Funding America, Inc.  The SEC’s Internet site can be found at http://www.sec.gov.  You may also request a copy of these filings, at no cost, by writing us at 302 Knights Run Avenue, Suite 1000, Tampa, FL 33602 or telephoning us at (813) 222-8996.

We are subject to the information and reporting requirements of the Securities Exchange Act of 1934, as amended, and, in accordance with this law, file periodic reports, proxy statements and other information with the SEC. These periodic reports, proxy statements and other information are available for inspection and copying at the SEC’s public reference facilities and the website of the SEC referred to above. We also maintain a website at www.lmfunding.com. You may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. Information contained on our website is not a part of this prospectus and the inclusion of our website address in this prospectus is an inactive textual reference only. 

INFORMATION INCORPORATED BY REFERENCE

The SEC allows us to incorporate by reference the information and reports we file with it, which means that we can disclose important information to you by referring you to these documents. The information incorporated by reference is an important part of this prospectus. We are incorporating by reference the documents listed below, which we have already filed with the SEC:

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We also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, including those made after the date of the initial filing of the registration statement of which this prospectus is a part and prior to effectiveness of such registration statement, until we file a post-effective amendment that indicates the termination of the offering of the securities made by this prospectus and such future filings will become a part of this prospectus from the respective dates that such documents are filed with the SEC. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein or in any other subsequently filed document which is also incorporated or deemed to be incorporated herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.

Documents incorporated by reference are available from us, without charge. You may obtain documents incorporated by reference in this prospectus by requesting them in writing or by telephone at the following address or telephone number:

LM Funding America, Inc.

302 Knights Run Avenue, Suite 1000

Tampa, Florida 33602

Telephone: (813) 222-8996

You also may access these filings on our Internet site at www.lmfunding.com. Our web site and the information contained on that site, or connected to that site, are not incorporated into this prospectus or the registration statement of which this prospectus is a part.

This prospectus is part of a registration statement we filed with the SEC. We have incorporated exhibits into the registration statement of which this prospectus is a part. You should read the exhibits carefully for provisions that may be important to you.

Neither we nor the selling stockholder authorized anyone to provide any information or to make any representations other than those contained in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer to sell only the shares offered hereby, but only under the circumstances and in the jurisdictions where it is lawful to do so. The information contained in this prospectus or in any applicable free writing prospectus is current only as of its date, regardless of its time of delivery or any sale of shares of our common stock. Our business, financial condition, results of operations and prospects may have changed since that date. We are not, and the selling stockholder is not, making an offer of these securities in any jurisdiction where such offer is not permitted.

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_______________________________________

LM Funding America, Inc.

1,321,032 Shares

Common Stock

______________

Prospectus

______________

[●], 2018

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable by LM Funding, America, Inc., or the Registrant, in connection with the sale and distribution of the securities being registered.  All amounts are estimated except the SEC registration fee.  

Section 102(b)(7) of the Delaware General Corporation Law (“DGCL”) enables a corporation in its certificate of incorporation to eliminate or limit the personal liability of a director for violations of the director’s fiduciary duties, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions pursuant to Section 174 of the DGCL or (iv) for any transaction from which a director derived an improper personal benefit.  Our certificate of incorporation includes a provision that eliminates the personal liability of directors for monetary damages for actions taken as a director to the fullest extent authorized by the DGCL.

Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation and certain other persons serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in a similar capacity against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Our certificate of incorporation and by-laws provide indemnification for our directors, officers and employees to the fullest extent authorized by the DGCL. We will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that he or she is or was, or has agreed to become, a director, officer or employee of the Company, or, while a director, officer or employee of the Company, is or was serving at our request as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred by such indemnitee to the broadest extent permitted by the DGCL. Our certificate of incorporation and by-laws provide for advancement of expenses to an Indemnitee, provided that, to the extent that the DGCL requires, an advance of expenses incurred by an Indemnitee may only be made by delivery to the Company by the Indemnitee of an undertaking to repay all amounts so advanced if it is finally determined that such Indemnitee was not entitled to

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be indemnified by the Company.  Our certificate of incorporation and by-laws also permit us to enter into agreements with any person that provide for indemnification greater or different than the indemnification provided in our certificate of incorporation or by-laws.

We have entered into separate indemnification agreements with each of our directors and executive officers.  Each indemnification agreement provides, among other things, for indemnification to the fullest extent permitted by the DGCL against any and all expenses, judgments, fines, penalties, and amounts paid in settlement of any claim. The indemnification agreements provide for the advancement or payment of certain expenses to the indemnitee and for reimbursement to us if it is found that such indemnitee is not entitled to such indemnification under applicable law or the indemnification agreement.

We may choose to obtain a general liability insurance policy to protect any director, officer, employee and agent of the Company, any director, officer, employee and agent of a subsidiary of the Company, and any person serving as a director, officer, partner, member, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against liability asserted against such person or incurred by such person in any such capacity or arising out of the person’s status as such.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.  

Set forth below is information regarding securities issued by us within the past three years which were not registered under the Securities Act. Also included is the consideration received by us for such shares and information relating to the section of the Securities Act, or rule of the SEC, under which exemption from registration was claimed.

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The offers, sales and issuances of the securities described in each of the paragraphs above were deemed to be exempt from registration under the Securities Act in reliance upon Section 4(a)(2) of the Securities Act as transactions by an issuer not involving any public offering.  All of the foregoing securities are deemed restricted securities for purposes of the Securities Act.  Appropriate legends were affixed to the securities issued in these transactions. Each of the recipients of securities in these transactions had adequate access, through employment, business or other relationships, to information about the Registrant.

All purchasers of securities in transactions exempt from registration pursuant to Section 4(a)(2) of the Securities Act represented to the Registrant that they were accredited investors and were acquiring the shares for investment purposes only and not with a view to, or for sale in connection with, any distribution thereof and that they could bear the risks of the investment and could hold the securities for an indefinite period of time. The purchasers received written disclosures that the securities had not been registered under the Securities Act and that any resale must be made pursuant to a registration statement or an available exemption from the registration requirements of the Securities Act.

The undersigned registrant hereby undertakes:

Provided, however, that, paragraphs (1)(i), (ii), and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports

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filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement;

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EXHIBIT INDEX

SIGNATURES

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tampa, Florida, on the day of May 21, 2018.

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.  Each person whose signature appears below constitutes and appoints Bruce M. Rodgers and Richard Russell and each of them individually, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and any Rule 462(b) registration statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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