SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 22, 2020
AMERICAN WELL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
(State or other jurisdiction
75 State Street, 26th Floor
|(Address of Principal Executive Offices)||(Zip Code)|
Registrant’s telephone number, including area code: (617) 204-3500
(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 (see General Instruction A.2. below):
|☐||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 Securities Exchange Act of 1934:
|Title of each class||
Name of each exchange
on which registered
|Class A Common Stock, $0.01 Par Value||AMWL||New York Stock Exchange|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company x
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 1.01.||Entry into a Material Definitive Agreement.|
On September 21, 2020, concurrently with the closing of its initial public offering and upon the terms and subject to the conditions set forth in the Stock Purchase Agreement previously entered into with Google LLC (the “Investor”), the Company issued and sold in a private placement to the Investor 5,555,555 shares of Class C common stock, par value $0.01 per share, of the Company (“Class C Common Stock”) for an aggregate purchase price of $100 million (the “Private Placement”). As of September 21, 2020, the Investor holds approximately 2.5% of the issued and outstanding common stock of the Company on a fully diluted basis. The Company expects to use the net proceeds from the Private Placement for further growth initiatives related to its telehealth portfolio. The Stock Purchase Agreement was filed as Exhibit 10.33 to the Registration Statement on Form S-1 (File No. 333-248309), as amended (the “Registration Statement”) filed on August 24, 2020. The closing press release is included as Exhibit 99.1.
On September 21, 2020, the Company and the Investor entered into Amendment No.5 and Joinder to the Company’s Second Amended and Restated Investors’ Rights Agreement (the “Amended Investors’ Rights Agreement”), pursuant to which the Investor is entitled to registration rights with respect to shares of Class C Common Stock held by the Investor.
The Amended Investors’ Rights Agreement is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
|Item 3.02||Unregistered Sales of Equity Securities|
The information set forth under Item 1.01 above and Item 5.03 below is incorporated by reference into this Item 3.02. The securities issued to the Investor were issued pursuant to the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, and the securities issued to our founders were issued pursuant to an exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933.
|Item 3.03.||Material Modification to Rights of Security Holders|
The information set forth under Item 5.03 below is incorporated by reference into this Item 3.03.
|Item 5.03.||Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.|
On September 21, 2020, the Company filed an Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) and the Company’s Amended and Restated Bylaws (the “Bylaws”) became effective on such date. The terms of the Certificate of Incorporation and Bylaws are the forms previously filed as Exhibits 3.1 and 3.2, respectively, to the Registration Statement, which exhibits are incorporated by reference herein. The Certificate of Incorporation and Bylaws restate the Company’s prior certificate of incorporation and bylaws to, among other things:
|·||Authorize three classes of common stock, Class A, Class B and Class C and convert all outstanding shares of common stock into Class A common stock (other than shares held by the Company’s founders, which were concurrently exchanged into shares of Class B common stock), which are entitled to one vote per share;|
|·||Provide that the Class B common stock collectively be entitled to a number of votes that equal 51% of the total voting power of all shares of common stock and any preferred stock entitled to vote and permit a share of the Class B common stock to be convertible at any time into one share of Class A common stock, and require it to be converted into such shares of Class A common stock upon (i) any transfer of such shares, except for certain permitted transfers to entities controlled by the Company’s founders, (ii) on the first business day after the date on which the outstanding shares of Class B common stock constitutes less than 5% of the aggregate number of shares of common stock then outstanding, as determined by the board of directors, (iii) on the first business day after the date on which neither founder is serving as an executive officer, (iv) following seven years after the date the Certificate of Incorporation becomes effective, provided that such period may, to the extent permitted by law and applicable stock exchange rules, be extended for three years upon the affirmative vote of the holders of a majority of the voting power of the then-outstanding shares of Class A common stock entitled to vote thereon, voting separately as a class;|
|·||Provide that the Class C common stock be entitled to one vote per share on all matters other than votes on directors and be convertible into shares of Class A common stock on a one-for-one basis at the option of the holder upon determination that a filing under the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”) is not necessary prior to conversion of such shares or, if required, upon expiration or termination of the HSR waiting period;|
|·||Require the approval of holders of at least 75% of the total combined voting power of the outstanding shares of common stock to amend the Certificate of Incorporation or Bylaws;|
|·||Divide the Company’s board of directors into three classes serving staggered three-year terms; and|
|·||Require that certain courts in the State of Delaware or the federal district courts of the United States be the exclusive forum for certain types of lawsuits.|
The foregoing description of the Certificate of Incorporation and Bylaws is qualified in its entirety by reference to the Certificate of Incorporation and the Bylaws. Reference is also made to the Company’s prospectus filed under Rule 424 on September 18, 2020 for a more complete description of the Certificate of Incorporation and Bylaws.
|Item 8.01.||Other Events|
On September 16, 2020, the Company announced the pricing of its initial public offering of 41,222,222 shares of its Class A common stock, par value $0.01 per share (the “Common Stock”) at a price to the public of $18.00 per share. In addition, the Company granted the underwriters a 30-day option to purchase up to 4,459,277 additional shares of Common Stock from the Company at the public offering price and 1,724,056 shares of Common Stock from certain selling shareholders, less underwriting discounts and commissions.
On September 18, 2020, the underwriters exercised in full their option to purchase additional shares. On September 21, 2020, the Company completed its initial public offering of Common Stock. The Company sold 45,681,499 shares of Common Stock and certain selling shareholders of the Company sold 1,724,056 shares of Common Stock.
|Item 9.01.||Financial Statements and Exhibits|
|3.1||Amended and Restated Certificate of Incorporation of American Well Corporation, dated September 21, 2020 (incorporated by reference from Exhibit 3.1 to the Registrant’s Registration Statement on Form S-1 filed on September 8, 2020).|
|3.2||Amended and Restated Bylaws of American Well Corporation, dated as of September 21, 2020 (incorporated by reference from Exhibit 3.2 to the Registrant’s Registration Statement on Form S-1 filed on September 8, 2020).|
|10.1||Amendment No. 5 and Joinder to the Second Amended and Restated Investors’ Rights Agreement, dated September 21, 2020|
|99.1||Closing Press Release of American Well Corporation dated September 21, 2020.|
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: September 22, 2020
|AMERICAN WELL CORPORATION|
|Senior Vice President, General Counsel|
AMENDMENT NO. 5 AND JOINDER
SECOND AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
This Amendment No. 5 and Joinder (this “Amendment”), effective as of September 21, 2020, is made to that certain Second Amended and Restated Investors’ Rights Agreement, dated as of October 8, 2010, by and among American Well Corporation, a Delaware corporation (the “Company”), the Investors and the Common Holders, as amended by Amendment No. 1, dated as of November 21, 2016, Amendment No. 2, dated as of May 29, 2018, Amendment No. 3, dated as of July 19, 2019 and Amendment No. 4, dated as of July 23, 2020 (as amended, the “Agreement”). Unless otherwise defined herein, capitalized terms used herein shall have the meanings given to such terms in the Agreement.
WHEREAS, in connection with the Company’s initial public offering, the Company and Google LLC, a Delaware limited liability company (“Google”), entered into that certain Stock Purchase Agreement, dated as of August 22, 2020 (the “Stock Purchase Agreement”), and it is a condition to the closing of the issuance and sale of the shares of Class C Common Stock, par value $0.01 per share (the “Class C Common Stock”), by the Company to Google pursuant to the Stock Purchase Agreement that Google be joined as a party to the Agreement and that the Agreement be amended as set forth in this Amendment;
WHEREAS, pursuant to Sections 2.13 and 8.1 of the Agreement, Google may only be joined as a party to the Agreement with the prior written consent of the Holders holding a majority of Registrable Securities (the “Requisite Holders”) and the Agreement may only be amended by a written instrument executed by the Company and the Requisite Holders; and
WHEREAS, the Company and the Requisite Holders hereby consent to join Google as a party to the Agreement and to amend the Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, all of the parties hereto mutually agree as follows:
(a) By execution of this Amendment, Google hereby agrees to and does become party to the Agreement as a Holder and, in its capacity as a Holder, agrees to be bound by the terms, conditions and agreements contained in the Agreement. This Amendment shall serve as a counterpart signature page to the Agreement and, by executing this Amendment, Google is deemed to have executed the Agreement with the same force and effect as if originally named a party thereto.
(b) By execution hereof, the Company and the Requisite Holders hereby (i) accept the agreement of Google to be bound by the Agreement, (ii) covenant and agree that the Agreement is hereby amended to include Google as a party thereto in its capacity as a Holder and (iii) agree that Google shall have all rights provided to a Holder under the Agreement.
2. Amendment. As of the effective date of this Amendment, the Agreement shall be amended as follows:
(a) Section 1.1(c) is hereby amended to insert “, and any other capital stock of the Company into which the Common Stock is reclassified or reconstituted; provided that Common Stock shall not include Class B Common Stock, par value $.01 per share, of the Company or Class C Common Stock, par value $.01 per share, of the Company” following “Company” such that Section 1.1(c) reads as follows:
“(c) “Common Stock” shall mean the Common Stock, par value $.01 per share of the Company, and any other capital stock of the Company into which the Common Stock is reclassified or reconstituted; provided that Common Stock shall not include Class B Common Stock, par value $.01 per share, of the Company or Class C Common Stock, par value $.01 per share, of the Company.”
(b) Section 1.1(f) is hereby amended to insert “or extended by joinder or amendment to this Agreement in accordance with Sections 2.13 and 8.1 of this Agreement” at the end of clause (ii) between “Agreement” and “, and” such that the full clause (ii) of Section 1.1(f) reads as follows:
“(ii) any holder of Registrable Securities to whom the registration rights conferred by this Agreement have been duly and validly transferred in accordance with Section 2.12 of this Agreement or extended by joinder or amendment to this Agreement in accordance with Sections 2.13 and 8.1 of this Agreement, and”
(c) Section 1.1(q) is hereby amended and restated in its entirety to read as follows:
“(q) “Registrable Securities” shall mean (i) shares of Common Stock issuable or issued pursuant to the conversion of the Shares, exercise of the Warrant, or conversion of shares of Class C Common Stock; and (ii) any Common Stock issued as a dividend or other distribution with respect to or in exchange for or in replacement of the shares referenced in (i) above; provided, however, that Registrable Securities shall not include any shares of Common Stock described in clause (i) above which have previously been registered or which have been sold to the public either pursuant to a registration statement or Rule 144, or which have been sold in a private transaction in which the transferor’s rights under this Agreement are not validly assigned in accordance with this Agreement.”
(d) The last sentence of Section 2.8(ii) is hereby amended to insert “a detailed description of the manner and circumstances of the proposed disposition,” between “require” and “opinion” and to insert “, solely with respect to opinions of counsel,” between “except” and “in”, such that the full sentence reads as follows:
“It is agreed that the Company will not require a detailed description of the manner and circumstances of the proposed disposition, opinions of counsel or “no
action” letters for transactions made pursuant to Rule 144, except, solely with respect to opinions of counsel, in unusual circumstances.”
(e) Section 8.1 is hereby amended to add the following sentence at the end thereof:
“Notwithstanding any other term or provision of this Agreement, for so long as Google LLC is a Holder, this Agreement may not be amended, waived, modified, supplemented, discharged or terminated in any manner that would adversely and disproportionately affect Google LLC’s rights without the prior written consent of Google LLC.”
2. No Other Modifications. Section 8 of the Agreement is hereby incorporated into this Amendment, mutatis mutandis. Except as modified and amended herein, all other terms and provisions of the Agreement will not be amended and will remain in full force and effect.
3. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, such as www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
|AMERICAN WELL CORPORATION|
|By:||/s/ Bradford Gay|
|Title:||Senior Vice President, General Counsel|
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
|By:||/s/ Kenneth Yi|
Amwell Announces Closing of Upsized Initial Public Offering and Full Exercise of the Underwriters’ Option to Purchase Additional Shares
BOSTON, MA — September 21, 2020 – Amwell®, a national telehealth leader, today announced the closing of its upsized initial public offering of 47,405,555 shares of its Class A common stock at an initial offering price of $18.00 per share, which includes the full exercise of the underwriters’ option to purchase 6,183,333 additional shares of Class A common stock from Amwell and certain stockholders of Amwell (the “Selling Stockholders”). Including the $100 million investment from Google LLC concurrent with the IPO and the option exercise, the aggregate gross proceeds to Amwell were approximately $922 million, and the aggregate gross proceeds to the Selling Stockholders were approximately $31 million, in each case, before deducting underwriting discounts and commissions and other expenses. The shares began trading on The New York Stock Exchange under the symbol “AMWL” on September 17, 2020.
Morgan Stanley, Goldman Sachs & Co. LLC and Piper Sandler acted as lead joint book-running managers for the offering. UBS Investment Bank, Credit Suisse, Cowen and Berenberg acted as bookrunners for the offering.
The offering was made only by means of a prospectus. Copies of the final prospectus relating to the offering may be obtained from Morgan Stanley & Co. LLC, Attention: Prospectus Department, 180 Varick Street, 2nd Floor, New York, New York 10014 or by e-mail at firstname.lastname@example.org; Goldman Sachs & Co. LLC, Attention: Prospectus Department, 200 West Street, New York, New York 10282, by telephone at (866) 471-2526 or by e-mail at email@example.com); or Piper Sandler & Co., Attention: Prospectus Department, 800 Nicollet Mall, J12S03, Minneapolis, Minnesota 55402, by telephone at (800) 747-3924 or by e-mail at firstname.lastname@example.org.
In addition to the shares of Class A common stock sold in the initial public offering, Amwell announced the sale of 5,555,555 shares of Class C common stock at a price per share equal to the initial public offering price of its Class A common stock in a concurrent private placement to Google LLC. The sale of Class C common stock will not be registered under the Securities Act of 1933, as amended. The aggregate gross proceeds to Amwell from the concurrent private placement, before deducting expenses payable by Amwell, were $100 million. The concurrent private placement also closed on September 21, 2020.
A registration statement relating to these Class A securities have been filed with, and declared effective by the U.S. Securities and Exchange Commission (the “SEC”). This press release shall not constitute an
offer to sell or the solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
Amwell is a leading telehealth platform in the United States and globally, connecting and enabling providers, insurers, patients, and innovators to deliver greater access to more affordable, higher quality care. Amwell believes that digital care delivery will transform healthcare. The Company offers a single, comprehensive platform to support all telehealth needs from urgent to acute and post-acute care, as well as chronic care management and healthy living. With over a decade of experience, Amwell powers telehealth solutions for over 2,000 hospitals and 55 health plan partners with over 36,000 employers, covering over 80 million lives.
This press release contains forward-looking statements about us and our industry that involve substantial risks and uncertainties and are based on our beliefs and assumptions and on information currently available to us. All statements other than statements of historical facts contained in this press release, including statements regarding our future results of operations, financial condition, business strategy and plans and objectives of management for future operations, are forward-looking statements. In some cases, you can identify forward-looking statements because they contain words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “will,” or “would,” or the negative of these words or other similar terms or expressions.
Forward-looking statements involve known and unknown risks, uncertainties and other 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. Forward-looking statements represent our beliefs and assumptions only as of the date of this release. These statements, and related risks, uncertainties, factors and assumptions, include, but are not limited to: weak growth and increased volatility in the telehealth market; our history of losses and the risk we may not achieve profitability; inability to adapt to rapid technological changes; our limited number of significant clients and the risk that we may lose their business; increased competition from existing and potential new participants in the healthcare industry; changes in healthcare laws, regulations or trends and our ability to operate in the heavily regulated healthcare industry; compliance
with regulations concerning personally identifiable information and personal health industry; slower than expected growth in patient adoption of telehealth and in platform usage by either clients or patients; inability to grow our base of affiliated and non-affiliated providers sufficient to serve patient demand; our ability to comply with federal and state privacy regulations and the significant liability that could result from a cybersecurity breach or our failure to comply with such regulations; our ability to establish and maintain strategic relationships with third parties; the impact of the COVID-19 pandemic on our business or on our ability to forecast our business’s financial outlook; the risk that the insurance we maintain may not fully cover all potential exposures; and inability to remediate material weaknesses or maintain effective internal control over financial reporting. These risks are not exhaustive. Except as required by law, we assume no obligation to update these forward-looking statements, or to update the reasons actual results could differ materially from those anticipated in the forward-looking statements, even if new information becomes available in the future. Further information on factors that could cause actual results to differ materially from the results anticipated by our forward-looking statements is included in the reports we have filed or will file with the Securities and Exchange Commission. These filings, when available, are available on the investor relations section of our website at investors.amwell.com and on the SEC’s website at www.sec.gov.
American Well and Amwell are registered trademarks or trademarks of American Well Corporation in the United States and other countries. All other trademarks used herein are the property of their respective owners.
781-888-8219 / email@example.com