As filed with the Securities and Exchange Commission on June 30, 2021.
Registration No. 333-257488
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EX-1.1 - EXHIBIT 1.1 - BTRS Holdings Inc. | nt10025714x4_ex1-1.htm |
Delaware | | | 7371 | | | 83-3780685 |
(State or Other Jurisdiction of Incorporation or Organization) | | | (Primary Standard Industrial Classification Code No.) | | | (I.R.S. Employer Identification No.) |
Copies to: Nicole Brookshire Matthew Browne Alan Hambelton Cooley LLP 500 Boylston Street Boston, Massachusetts 02116 Tel: (617) 937-2300 | | | Copies to: Colin J. Diamond Era Anagnosti White & Case LLP 1221 Avenue of the Americas New York, New York 10020-1095 Tel: (212) 819-8200 |
Large accelerated filer ☐ | | | Accelerated filer ☐ | | | Non-accelerated filer ☒ | | | Smaller reporting company ☒ |
| | | | | | Emerging growth company ☒ |
Item 13. | Other Expenses of Issuance and Distribution. |
| | Amount | |
SEC registration fee | | | $15,232 |
FINRA filing fee | | | 21,433 |
Legal fees and expenses | | | 400,000 |
Accounting fees and expenses | | | 100,000 |
Printing and engraving expenses | | | 30,000 |
Miscellaneous | | | 10,000 |
Total | | | $576,665 |
Item 14. | Indemnification of Directors and Officers |
• | for any transaction from which the director derives an improper personal benefit; |
• | for any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
• | for any unlawful payment of dividends or redemption of shares; or |
• | for any breach of a director’s duty of loyalty to the corporation or its stockholders. |
Item 15. | Recent Sales of Unregistered Securities. |
Item 16. | Exhibits. |
Exhibit No. | | | Description |
| | Form of Underwriting Agreement. | |
| | Business Combination Agreement, dated as of October 18, 2020, by and among South Mountain Merger Corp., BT Merger Sub I, Inc., BT Merger Sub II, LLC and Factor Systems, Inc. (d/b/a Billtrust) (incorporated by reference to Exhibit 2.1 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Amendment to Business Combination Agreement, dated as of December 13, 2020, by and among South Mountain Merger Corp., BT Merger Sub I, Inc., BT Merger Sub II, LLC and Factor Systems, Inc. (d/b/a Billtrust) (incorporated by reference to Exhibit 2.2 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Second Amended and Restated Certificate of Incorporation of the Company, dated January 12, 2021 (incorporated by reference to Exhibit 3.1 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Amended and Restated Bylaws of the Company, dated January 12, 2021 (incorporated by reference to Exhibit 3.2 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Form of Common Stock Certificate of the Company (incorporated by reference to Exhibit 4.1 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Form of Warrant Certificate of the Company (incorporated by reference to Exhibit 4.2 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Warrant Agreement, dated June 19, 2019, by and between South Mountain Merger Corp. and Continental Stock Transfer & Trust Company, as warrant agent (incorporated by reference to Exhibit 4.4 filed on South Mountain Merger Corp.’s Current Report on Form 8-K, filed by the Registrant on June 25, 2019). | |
| | Amended and Restated Registration Rights Agreement, dated October 18, 2020, by and among the Company and certain stockholders of the Company (incorporated by reference to Exhibit 4.4 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Form of Lock-Up Agreement (incorporated by reference to Exhibit 4.5 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Opinion of Cooley LLP | |
| | Form of Subscription Agreement, dated as of October 18, 2020, by and between the Company and the investors party thereto (incorporated by reference to Exhibit 10.1 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Form of Indemnification Agreement by and between the Company and its directors and officers (incorporated by reference to Exhibit 10.2 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | BTRS Holdings Inc. 2020 Equity Incentive Plan (incorporated by reference to Exhibit 10.3 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | BTRS Holdings Inc. Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.4 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Lease Agreement, dated August 28, 2017, by and between Factor Systems, Inc. (d/b/a Billtrust) and Lenox Drive Office Park LLC (incorporated by reference to Exhibit 10.5 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | First Amendment to Lease Agreement, dated August 28, 2017, by and between Factor Systems, Inc. (d/b/a Billtrust) and Lenox Drive Office Park LLC (incorporated by reference to Exhibit 10.6 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). |
Exhibit No. | | | Description |
| | Employment Agreement between Factor Systems, Inc. (d/b/a Billtrust) and Flint A. Lane dated August 1, 2014, as amended by First Amendment to Employment Agreement dated May 18, 2017 and Second Amendment to Employment Agreement dated October 14, 2020 (incorporated by reference to Exhibit 10.7 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Employment Agreement between Factor Systems, Inc. (d/b/a Billtrust) and Steven Pinado dated March 28, 2018, as amended by First Amendment to Employment Agreement dated October 14, 2020 (incorporated by reference to Exhibit 10.8 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Employment Agreement between Factor Systems, Inc. (d/b/a Billtrust) and Mark Shifke dated March 10, 2020 (incorporated by reference to Exhibit 10.9 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Employment Agreement between Factor Systems, Inc. (d/b/a Billtrust) and Joe Eng dated February 24, 2020 (incorporated by reference to Exhibit 10.10 filed on BTRS Holdings Inc.’s Current Report on Form 8-K, filed by the Registrant on January 14, 2021). | |
| | Subsidiaries of the Company. | |
| | Consent of BDO USA, LLP, independent registered public accounting firm of BTRS Holdings Inc. (f/k/a Factor Systems, Inc. (dba Billtrust)). | |
| | Consent of Cooley LLP (included in Exhibit 5.1). | |
| | Power of Attorney. Reference is made to the signature page hereto. |
+ | The schedules and exhibits to this agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request. |
# | Indicates management contract or compensatory plan or arrangement. |
* | Previously filed. |
Item 17. | Undertakings. |
(a) | To provide to the underwriter at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser. |
(b) | 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 provisions referenced in Item 14 of this registration statement, 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 Act 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 hereunder, 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 of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
(c) | The undersigned registrants hereby undertakes: |
(1) | For purposes of determining any liability under the Securities Act, 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 pursuant to 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, 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. |
| | BTRS HOLDINGS INC. | |
| | ||
| | /s/ Flint A. Lane | |
| | Name: Flint A. Lane | |
| | Title: Chief Executive Officer and Chairman of the Board of Directors |
Signature | | | Title | | | Date |
/s/ Flint A. Lane | | | Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) | | | June 30, 2021 |
Flint A. Lane | | |||||
/s/ Mark Shifke | | | Chief Financial Officer (Principal Financial Officer) | | | June 30, 2021 |
Mark Shifke | | |||||
* | | | Senior Vice President, Finance (Principal Accounting Officer) | | | June 30, 2021 |
Andrew Herning | | |||||
* | | | Director | | | June 30, 2021 |
Charles Bernicker | | |||||
* | | | Director | | | June 30, 2021 |
Clare Hart | | |||||
* | | | Director | | | June 30, 2021 |
Robert Farrell | | |||||
* | | | Director | | | June 30, 2021 |
Lawrence Irving | | |||||
* | | | Director | | | June 30, 2021 |
Matt Harris | | |||||
* | | | Director | | | June 30, 2021 |
Juli Spottiswood | |
* By: | | | /s/ Flint A. Lane | | | |
| | Flint A. Lane | | | ||
| | Attorney-in-fact | | |