UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 11, 2021 (August 5, 2021)
| 1847 Holdings LLC |
| (Exact name of registrant as specified in its charter) |
| Delaware | 000-56128 | 38-3922937 | ||
|
(State or other jurisdiction
of incorporation) |
(Commission File Number) |
(IRS Employer
Identification No.) |
| 590 Madison Avenue, 21st Floor, New York, NY | 10022 | |
| (Address of principal executive offices) | (Zip Code) |
| (212) 417-9800 |
| (Registrant's telephone number, including area code) |
| (Former name or former address, if changed since last report.) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: None
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
Emerging Growth Company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 3.03 | Material Modification to Rights of Security Holders. |
On August 5, 2021, the Second Amended and Restated Operating Agreement (the “Operating Agreement”) of 1847 Holdings LLC (the “Company”), was amended pursuant to Amendment No. 1 to Second Amended and Restated Operating Agreement (the “Amendment”), entered into by 1847 Partners LLC, as the Manager and as Allocation Member (as defined in the Operating Agreement). The Amendment was adopted by the Board of Directors of the Company on August 5, 2021.
The following is a summary of the amendments to the Operating Agreement. Such summary is qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed as Exhibit 3.1 to this report and is incorporated by reference herein.
The Amendment amends the Operating Agreement as follows:
(1) the definition of “Contribution-Based Profits” was amended to remove language relating to “loss” and “net loss”;
(2) the definition of “Sales Event” was amended to add the following sentence: “For the avoidance of doubt, if the Company distributes its equity ownership in a Subsidiary to the Company’s Shareholders in a spin-off or similar transaction, such distribution shall constitute a Sale Event.”; and
(3) the definition of “Total Profit Allocation” was amended to add the following sentence: “For the avoidance of doubt, if Contribution-Based Profits is a negative number, it shall be disregard in calculating Total Profit Allocation.”
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The information set forth in Item 3.03 above is incorporated herein in its entirety.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
The following exhibits are filed herewith:
| Exhibit No. | Description of Exhibit | |
| 3.1 |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| 1847 HOLDINGS LLC | ||
| Date: August 11, 2021 | By: | /s/ Ellery W. Roberts |
| Name: | Ellery W. Roberts | |
| Title: | Chief Executive Officer | |
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EXHIBIT INDEX
| Exhibit No. | Description of Exhibit | |
| 3.1 | Amendment No. 1 to Second Amended and Restated Operating Agreement of 1847 Holdings LLC, dated August 5, 2021 |
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Exhibit 3.1
1847 HOLDINGS LLC
AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED OPERATING AGREEMENT
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED OPERATING AGREEMENT (this “Amendment”) of 1847 Holdings LLC, a Delaware limited liability company (the “Company”), shall be effective as of August 5, 2021, and is entered into by 1847 Partners LLC, as the sole Manager and as the sole Allocation Member. Capitalized terms used, but not otherwise defined, in this Amendment have the meanings ascribed to them in the Operating Agreement (as defined below).
BACKGROUND
A. Article XII of the Second Amended and Restated Operating Agreement of the Company, dated January 19, 2018 (the “Operating Agreement”) provides that with certain exceptions none of which apply to this Amendment, the Board of Directors is authorized to amend any of the terms of the Operating Agreement by the affirmative vote of a majority of the Entire Board of Directors.
B. On August 5, 2021, the Entire Board of Directors unanimously adopted resolutions by written consent that authorized and approved this Amendment.
C. This Amendment amends the definition of Contribution-Based Profits and related definitions contained in the Operating Agreement as set forth herein.
AGREEMENT
Accordingly, the Operating Agreement is hereby amended as follows:
1. Amendments to Definitions. Article II of the Operating Agreement is hereby amended to amend and restate the following definitions to read in their entirety as follows:
“Contribution-Based Profits” shall be equal to, with respect to any Profit Distribution Subsidiary for any Measurement Period as of any Calculation Date, the sum of (i) the aggregate amount of such Profit Distribution Subsidiary’s net income (as determined in accordance with GAAP and adjusted for minority interests) with respect to such Measurement Period (without giving effect to (x) any capital gains or capital losses realized by such Profit Distribution Subsidiary that arise with respect to the sale of capital stock or assets held by such Profit Distribution Subsidiary and which gave rise to a Sale Event and a calculation of Profit Distribution Amount or (y) any expense attributable to the accrual or payment of any amount of Profit Distribution or any amount arising under the Put Right, in each case, to the extent included in the calculation of such Profit Distribution Subsidiary’s net income), plus (ii) the absolute aggregate amount of such Profit Distribution Subsidiary’s loan expense with respect to such Measurement Period, minus (iii) the absolute aggregate amount of such Profit Distribution Subsidiary’s Allocated Share of the Company’s Overhead with respect to such Measurement Period.
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“Sale Event” means, with respect to any Subsidiary, the sale of a material amount, as determined by the Allocation Member and consented to by a majority of the Board of Directors, such consent not to be unreasonably withheld, conditioned or delayed, of the capital stock or assets of such Subsidiary or a Subsidiary of such Subsidiary. For the avoidance of doubt, if the Company distributes its equity ownership in a Subsidiary to the Company’s Shareholders in a spin-off or similar transaction, such distribution shall constitute a Sale Event.
“Total Profit Allocation” shall be equal to, with respect to any Profit Distribution Subsidiary as of any Calculation Date, the sum of (i) the Contribution-Based Profits of such Profit Distribution Subsidiary for the Measurement Period with respect to such Profit Distribution Subsidiary as of such Calculation Date, plus (ii) if the Trigger Event underlying the calculation of Total Profit Allocation as of such Calculation Date is a Sale Event, the Company’s Cumulative Gains and Losses as of such Calculation Date. For the avoidance of doubt, if Contribution-Based Profits is a negative number, it shall be disregarded in calculating Total Profit Allocation.
3. No Other Changes. All terms and provisions of the Operating Agreement shall otherwise remain valid, binding and unchanged.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Amendment as of the date and year set forth above.
| MANAGER AND SOLE ALLOCATION MEMBER: | ||
| 1847 Partners LLC | ||
| By: | /s/ Ellery W. Roberts | |
| Ellery W. Roberts | ||
| Manager | ||
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