Item 9A. Controls and Procedures
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Disclosure controls and procedures are controls and other procedures that are designed to ensure that information required to be disclosed in our reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in our reports filed or submitted under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
As required by Rules 13a-15 and 15d-15 under the Exchange Act, our Chief Executive Officer and Chief Financial Officer carried out an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as of December 31, 2021. Based upon their evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of December 31, 2021, our disclosure controls and procedures are designed at a reasonable assurance level and are effective to provide reasonable assurance that information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the rules and forms of the SEC, and that such information is accumulated and communicated to our management, including our CEO and CFO, as appropriate, to allow timely decisions regarding required disclosure .
Management’s Report on Internal Controls Over Financial Reporting
This Annual Report on Form 10-K does not include a report of management’s assessment regarding internal control over financial reporting or an attestation report of our independent registered public accounting firm due to a transition period established by rules of the SEC for newly public companies.
Under the rules and regulations of the SEC, the Company is not required to comply with the requirements of Section 404 of the Sarbanes-Oxley Act of 2002 until the Company files its Annual Report on Form 10-K for fiscal year ending December 31, 2022.
Changes in Internal Control over Financial Reporting
There were no changes in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) during the most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Limitations on Effectiveness of Controls and Procedures
In designing and evaluating the disclosure controls and procedures and internal control over financial reporting, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives. In addition, the design of disclosure controls and procedures must reflect the fact that there are resource constraints and that management is required to apply judgment in evaluating the benefits of possible controls and procedures relative to their costs.
Item 9B. Other Information
None
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Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
None
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Part III
Item 10. Directors, Executive Officers and Corporate Governance
The information required by this item will be included in our definitive Proxy Statement pertaining to our 2022 Annual Meeting of Stockholders, which will be filed with the SEC pursuant to Regulation 14A not later than 120 days after the end of the 2021 fiscal year, and is herein incorporated by reference.
Code of Conduct and Business Ethics
We have adopted a Code of Conduct and Ethics, which is applicable to all directors, officers and employees, including our Chief Executive Officer and Chief Financial Officer. Our Code of Conduct and Business Ethics is posted on our Investor Relations website at https://ir.lathampool.com/ on the Governance page of the website. To the extent required by SEC rules, we intend to disclose any amendments to our code of conduct and ethics, and any waiver of a provision of the code with respect to our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions, on our web site referred to above within four business days following any such amendment or waiver, or within any other period that may be required under SEC rules from time to time.
Item 11. Executive Compensation
The information required by this item will be included in our definitive Proxy Statement pertaining to our 2022 Annual Meeting of Stockholders, which will be filed with the SEC pursuant to Regulation 14A not later than 120 days after the end of the 2021 fiscal year, and is herein incorporated by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this item will be included in our definitive Proxy Statement pertaining to our 2022 Annual Meeting of Stockholders, which will be filed with the SEC pursuant to Regulation 14A not later than 120 days after the end of the 2021 fiscal year, and is herein incorporated by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by this item will be included in our definitive Proxy Statement pertaining to our 2022 Annual Meeting of Stockholders, which will be filed with the SEC pursuant to Regulation 14A not later than 120 days after the end of the 2021 fiscal year, and is herein incorporated by reference.
Item 14. Principal Accounting Fees and Services
The information required by this item will be included in our definitive Proxy Statement pertaining to our 2022 Annual Meeting of Stockholders, which will be filed with the SEC pursuant to Regulation 14A not later than 120 days after the end of the 2021 fiscal year, and is herein incorporated by reference.
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Part IV
Item 15. Exhibits and Financial Statement Schedules
(a) The following documents are filed as a part of this report:
1) Financial Statements. The Company’s financial statements are included in Part II, Item 8, Financial Statements and Supplementary Data.
2) Financial Statements Schedules. All schedules are omitted since they are not applicable, not required, or the information required to be set forth therein is included under Part II, Item 8, Financial Statements and Supplementary Data.
3) Exhibits. The exhibits listed in the Exhibit Index immediately below are filed as part of this Annual Report on Form 10-K.
EXHIBIT INDEX
Exhibit
Number
Exhibit Description
2.1
Merger Agreement by and between Latham Group, Inc. and Latham Investment Holdings, L.P. (incorporated by reference to Exhibit 2.1 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on June 3, 2021 (File No. 001-40358))
3.1
Amended and Restated Certificate of Incorporation of Latham Group, Inc. (incorporated by reference to Exhibit 3.1 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on June 3, 2021 (File No. 001-40358))
3.2
Amended and Restated Bylaws of Latham Group, Inc. (incorporated by reference to Exhibit 3.2 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on June 3, 2021 (File No. 001-40358))
4.1*
Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934.
10.1#
Credit Agreement, dated as of December 18, 2018, among Latham Pool Products, Inc., Latham International Manufacturing Corp., the lenders party thereto and Nomura Corporate Funding Americas, LLC., as administrative agent (incorporated by reference to Exhibit 10.1 to Latham Group, Inc.’s Registration Statement on Form S-1 filed with the Commission on April 15, 2021 (File No. 333-254930))
10.2
First Incremental Facility Amendment to the Credit Agreement, dated as of May 29, 2019, among Latham Pool Products, Inc., Latham International Manufacturing Corp., the lenders party thereto and Nomura Corporate Funding Americas, LLC, as administrative agent (incorporated by reference to Exhibit 10.2 to Latham Group, Inc.’s Registration Statement on Form S-1 filed with the Commission on April 15, 2021 (File No. 333-254930))
10.3
Second Incremental Facility Amendment to the Credit Agreement, dated as of October 14, 2020, among Latham Pool Products, Inc., Latham International Manufacturing Corp., the lenders party thereto and Nomura Corporate Funding Americas, LLC., as administrative agent (incorporated by reference to Exhibit 10.3 to Latham Group, Inc.’s Registration Statement on Form S-1 filed with the Commission on April 15, 2021 (File No. 333-254930))
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Exhibit
Number
Exhibit Description
10.4#
Third Incremental Facility Amendment to the Credit Agreement, dated as of January 25, 2021 among Latham Pool Products, Inc., Latham International Manufacturing Corp., the lenders party thereto and Nomura Corporate Funding Americas, LLC., as administrative agent (incorporated by reference to Exhibit 10.4 to Latham Group, Inc.’s Registration Statement on Form S-1 filed with the Commission on April 15, 2021 (File No. 333-254930))
10.5
Fourth Incremental Facility Amendment to the Credit Agreement, dated as of March 31, 2021 among Latham Pool Products, Inc., Latham International Manufacturing Corp., the lenders party thereto and Nomura Corporate Funding Americas, LLC., as administrative agent (incorporated by reference to Exhibit 10.2 to Latham Group, Inc.’s Current Report on Form 8-K filed with the Commission on November 30, 2021 (File No. 001-40358))
10.6
Fifth Incremental Facility Amendment to the Credit Agreement, dated as of November 24, 2021 among Latham Pool Products, Inc., Latham International Manufacturing Corp., the lenders party thereto and Nomura Corporate Funding Americas, LLC., as administrative agent (incorporated by reference to Exhibit 10.1 to Latham Group, Inc.’s Current Report on Form 8-K filed with the Commission on November 30, 2021 (File No. 001-40358))
10.7
Stockholders Agreement by and among Latham Group, Inc. and the stockholders party thereto, dated as of April 27, 2021 (incorporated by reference to Exhibit 10.1 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on August 5, 2021 (File No. 001-40358))
10.8
Registration Rights Agreement by and among Latham Group, Inc. and the stockholders party thereto, dated as of April 27, 2021 (incorporated by reference to Exhibit 10.2 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on August 5, 2021 (File No. 001-40358)))
10.9
Form of Indemnification Agreement by and among the Latham Group, Inc. and each of its directors and executive officers (incorporated by reference to Exhibit 10.3 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on August 5, 2021 (File No. 001-40358))
10.10†
Employment Agreement by and between Scott Rajeski and Latham Pool Products, Inc., dated December 17, 2018 (incorporated by reference to Exhibit 10.8 to Latham Group, Inc.’s Registration Statement on Form S-1 filed with the Commission on April 15, 2021 (File No. 333-254930))
10.11†
Offer Letter by and between J. Mark Borseth and Latham Pool Products, Inc., dated February 7, 2020, as amended February 11, 2020 (incorporated by reference to Exhibit 10.9 to Latham Group, Inc.’s Registration Statement on Form S-1 filed with the Commission on April 15, 2021 (File No. 333-254930))
10.12†
Employment Agreement by and between J. Mark Borseth and Latham Pool Products, Inc., dated February 12, 2020, as amended April 6, 2020 (incorporated by reference to Exhibit 10.10 to Latham Group, Inc.’s Registration Statement on Form S-1 filed with the Commission on April 15, 2021 (File No. 333-254930))
10.13†
Offer Letter by and between Joel R. Culp and Latham Pool Products, Inc., dated January 18, 2019 (incorporated by reference to Exhibit 10.11 to Latham Group, Inc.’s Registration Statement on Form S-1 filed with the Commission on April 15, 2021 (File No. 333-254930))
10.14†
Employment Agreement by and between Joel R. Culp and Latham Pool Products, Inc., dated February 11, 2019 (incorporated by reference to Exhibit 10.12 to Latham Group, Inc.’s Registration Statement on Form S-1 filed with the Commission on April 15, 2021 (File No. 333-254930))
10.15†
Latham Pool Products, Inc. Management Incentive Bonus Plan (incorporated by reference to Exhibit 10.4 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on August 5, 2021 (File No. 001-40358))
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Exhibit
Number
Exhibit Description
10.16†
Latham Group, Inc. 2021 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 10.5 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on August 5, 2021 (File No. 001-40358))
10.17†
Form of Nonqualified Option Award Agreement under the 2021 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 10.6 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on August 5, 2021 (File No. 001-40358))
10.18†
Form of Restricted Stock Award Agreement under the 2021 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 10.7 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on August 5, 2021 (File No. 001-40358))
10.19†
Form of Restricted Stock Unit Award Agreement under the 2021 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 10.8 to Latham Group, Inc.’s Quarterly Report on Form 10-Q filed with the Commission on August 5, 2021 (File No. 001-40358))
16.1
Letter regarding Change in Certifying Accountant (incorporated by reference to Exhibit 16.1 to Latham Group, Inc.’s Registration Statement on Form S-1 filed with the Commission on April 15, 2021 (File No. 333-254930))
21.1*
Subsidiaries of the registrant
23.1*
Consent of RSM US LLP, independent registered public accounting firm
23.2*
Consent of Deloitte & Touche LLP, independent registered public accounting firm
31.1*
Certification of CEO, pursuant to SEC Rule 13a-14(a) and 15d-14(a) (filed herewith)
31.2*
Certification of CFO, pursuant to SEC Rule 13a-14(a) and 15d-14(a) (filed herewith)
32.1**
Certification by the CEO, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished herewith)
32.2**
Certification by the CFO, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished herewith)
101.INS
iXBRL Instance Document
101.SCH
iXBRL Taxonomy Extension Schema Document
101.CAL
iXBRL Taxonomy Extension Calculation Linkbase Document
101.DEF
iXBRL Taxonomy Extension Definition Linkbase Document
101.LAB
iXBRL Taxonomy Extension Label Linkbase Document
101.PRE
iXBRL Taxonomy Extension Presentation Linkbase
104
Cover Page Interactive Data File (embedded within the Inline iXBRL document)
† Indicates management contract or compensatory plan.
* Filed herewith.
# Portions of this exhibit have been omitted pursuant to Item 601(a)(v) of Regulation S-K.
** A signed original of the written statement required by Section 906 has been provided to the Company and will be retained by the Company and forwarded to the SEC or its staff upon request.
Item 16. Form 10-K Summary
None
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date March 10, 2022
LATHAM GROUP, INC.
/s/ Scott Rajeski
Scott Rajeski
Chief Executive Officer and President; Director
(Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature
Title
Date
/s/ Scott M. Rajeski
Chief Executive Officer and President; Director
March 10, 2022
Scott M. Rajeski
(Principal Executive Officer)
/s/ James Mark Borseth
Chief Financial Officer
March 10, 2022
James Mark Borseth
(Principal Financial Officer)
/s/ Suraj Kunchala
Vice President and Controller
March 10, 2022
Suraj Kunchala
(Principal Accounting Officer)
/s/ William M. Pruellage
Director
March 10, 2022
William M. Pruellage
/s/ Dane Derbyshire
Director
March 10, 2022
Dane Derbyshire
/s/ Christopher P. O’Brien
Director
March 10, 2022
Christopher P. O’Brien
/s/ Mark P. Laven
Director
March 10, 2022
Mark P. Laven
/s/ James E. Cline
Director
March 10, 2022
James E. Cline
/s/ Robert D. Evans
Director
March 10, 2022
Robert D. Evans
/s/ Alexander L. Hawkinson
Alexander L. Hawkinson
Director
March 10, 2022
/s/ Suzan Morno-Wade
Suzan Morno-Wade
Director
March 10, 2022
119