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EX-1.1 - FORM OF UNDERWRITING AGREEMENT - SOC Telemed, Inc. | ea141639ex1-1_soctelemed.htm |
As filed with the Securities and Exchange Commission on May 25, 2021
Registration No. 333-256230
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SOC TELEMED, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware | 8090 | 84-3131208 | ||
(State or Other Jurisdiction
of Incorporation or Organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer Identification Number) |
1768 Business Center Drive, Suite 100
Reston, Virginia 20190
(866) 483-9690
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
John W. Kalix
Chief Executive Officer
1768 Business Center Drive, Suite 100
Reston, Virginia 20190
(866) 483-9690
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Peter M.
Lamb, Esq. William L. Hughes, Esq. Orrick, Herrington & Sutcliffe LLP The Orrick Building 405 Howard Street San Francisco, California 94105 (415) 773-5700 |
Richard Aftanas,
Esq. Hogan Lovells US LLP 390 Madison Avenue New York, New York 10017 (212) 918-3000 |
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,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☐ | |
Non-accelerated filer | ☒ | Smaller reporting company | ☒ | |
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 7(a)(2)(B) of the Securities Act. ☐
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 of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 2 (“Amendment No. 2”) to the Registration Statement on Form S-1 (File No. 333-256230) (the “Registration Statement”) of SOC Telemed, Inc. is being filed solely for the purpose of filing the Form of Underwriting Agreement as Exhibit 1.1 as indicated in Part II of this Amendment No. 2. This Amendment No. 2 does not modify any provision of the prospectus that forms a part of the Registration Statement. Accordingly, a preliminary prospectus has been omitted.
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table indicates the expenses to be incurred in connection with the offering described in this registration statement, other than underwriting discounts and commissions, all of which will be paid by us. All amounts shown are estimates except for the SEC registration fee and the FINRA filing fee.
Amount | ||||
SEC registration fee | $ | 7,694 | ||
FINRA filing fee | 11,078 | |||
Legal fees and expenses | 350,000 | |||
Accounting fees and expenses | 150,000 | |||
Printing and engraving expenses | 50,000 | |||
Transfer agent and registrar fees | 5,000 | |||
Miscellaneous | 76,228 | |||
Total | $ | 650,000 |
Item 14. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The DGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaws, agreement, vote of stockholders or disinterested directors or otherwise. The registrant’s amended and restated certificate of incorporation and amended and restated by-laws provide for indemnification by the registrant of its directors and officers to the fullest extent permitted by the DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions or (4) for any transaction from which the director derived an improper personal benefit. The registrant’s amended and restated certificate of incorporation provides for such limitation of liability to the fullest extent permitted by the DGCL.
The registrant has entered into, and expects to continue to enter into, indemnification agreements with each of its directors and executive officers. These agreements provide that the registrant will indemnify each of its directors and such officers to the fullest extent permitted by law.
Certain of the registrant’s non-employee directors may, through their relationships with their employers, be insured and/or indemnified against certain liabilities incurred in their capacity as members of the registrant’s board of directors.
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The registrant also maintains standard policies of insurance under which coverage is provided to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act, while acting in their capacity as directors and officers of the registrant.
In any underwriting agreement we will enter into in connection with the sale of the Class A common stock being registered hereby, the underwriters will agree to indemnify, under certain conditions, us, our directors, our officers and persons who control us within the meaning of the Securities Act, against certain liabilities.
Item 15. Recent Sales of Unregistered Securities.
In October 2019, HCMC issued an aggregate of 5,750,000 founder shares of its then-authorized Class B common stock in a private placement to HCMC Sponsor LLC for an aggregate purchase price of $25,000 in cash, or approximately $0.004 per share. Such securities were issued and sold in connection with HCMC’s organization pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act.
In December 2019, and simultaneously with the closing of its initial public offering, HCMC issued 700,000 private placement units, each of which consists of one private placement share of Class A common stock and one-half of one private placement warrant, to HCMC Sponsor LLC in a private placement pursuant to a unit subscription agreement, dated December 12, 2019, at a price of $10.00 per unit, for an aggregate purchase price of $7,000,000. Each whole private placement warrant is exercisable to purchase one share of Class A common stock at a price of $11.50 per share. The sales of the above securities were deemed to be exempt from registration under the Securities Act in reliance on the Section 4(a)(2) of the Securities Act.
In connection with the execution of the Merger Agreement, the Company entered into subscription agreements, each dated July 29, 2020, with certain investors pursuant to which the investors agreed to purchase an aggregate of 16,500,000 shares of Class A common stock in a private placement for an aggregate purchase price of $165.0 million. On October 22, 2020, and October 23, 2020, the Company entered into subscription agreements with additional investors pursuant to which the investors agreed to purchase an aggregate of 300,000 shares of Class A common stock in a private placement for an aggregate purchase price of $3.0 million. The private placement was consummated on October 30, 2020, concurrently with the closing of the Merger Transaction. The sales of the shares of Class A common stock issued in the private placement were deemed to be exempt from registration under the Securities Act in reliance on Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
In March 2021, in connection with the closing of the Acquisition, the Company issued an aggregate of 13,753,387 shares of Class A common stock to 15 accredited investors as consideration pursuant to the Purchase Agreement. The sales of the shares of Class A common stock issued in the Acquisition were deemed to be exempt from registration under the Securities Act in reliance on Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
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Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
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† | Schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The registrant hereby agrees to furnish supplementally a copy of any omitted schedule to the SEC upon its request. |
+ | Certain exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The registrant hereby agrees to furnish supplementally a copy of any omitted exhibit or schedule to the SEC upon its request. |
# | Indicates a management contract or compensatory plan, contract or arrangement. |
§ | Portions of this exhibit have been redacted in accordance with Regulation S-K Item 601(a)(6). |
* | Filed herewith. |
** | Previously filed. |
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(b) Financial Statement Schedules.
All financial statement schedules are omitted because the information required to be set forth therein is not applicable or is shown in the consolidated financial statements or the notes thereto.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant under Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
(2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Reston, Commonwealth of Virginia, on May 25, 2021.
SOC TELMED, INC. | ||
By: | /s/ John W. Kalix | |
John W. Kalix | ||
Chief Executive Officer and Director |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ John W. Kalix | Chief Executive Officer and Director | May 25, 2021 | ||
John W. Kalix | (Principal Executive Officer) | |||
* | Chief Financial Officer | May 25, 2021 | ||
Christopher K. Knibb | (Principal Financial and Accounting Officer) | |||
* | Director | May 25, 2021 | ||
Steven J. Shulman | ||||
* | Director | May 25, 2021 | ||
Barbara P. Byrne | ||||
* | Director | May 25, 2021 | ||
Thomas J. Carella | ||||
* | Director | May 25, 2021 | ||
Christopher M. Gallagher | ||||
Director | ||||
Gyasi C. Chisley | ||||
* | Director | May 25, 2021 | ||
Joseph P. Greskoviak | ||||
* | Director | May 25, 2021 | ||
Amr Kronfol | ||||
* | Director | May 25, 2021 | ||
Anne M. McGeorge |
By: | /s/ John W. Kalix | |
John W. Kalix | ||
Attorney-in-Fact |
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