As filed with the Securities and Exchange Commission
on February 16, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
AMERICAN WELL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
| Delaware |
7372 |
20-5009396 |
(State or Other Jurisdiction of
Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer
Identification No.) |
| |
75 State Street, 26th Floor
Boston, MA 02109 |
|
| (Address of Principal Executive Offices) |
|
|
|
American Well Corporation 2020 Equity Incentive
Plan
American Well Corporation 2020 Employee
Stock Purchase Plan
(Full Titles of the Plans) |
| |
Ido Schoenberg
Chairman, Co-Chief
Executive Officer
American Well
Corporation
75 State Street,
26th Floor
Boston, MA 02109
(617) 204-3500
(Name, Address,
Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service) |
|
|
Adam
Kaminsky
Michael
Kaplan
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
(212) 450-4000 |
|
Bradford Gay
SVP, General Counsel
American Well Corporation
75 State Street,
26th Floor
Boston, MA 02109
(617) 204-3500 |
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a 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 ☐ (Do not check if a smaller reporting company) |
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. ☐
EXPLANATORY NOTE
Pursuant to General Instruction E to Form S-8,
American Well Corporation (the “Registrant”) is filing this Registration Statement on Form S-8 (this “Registration Statement”)
with the U.S. Securities and Exchange Commission (the “Commission”) to register additional shares of Class A common stock,
$0.01 par value per share, of the Registrant (“Class A Common Stock”) for issuance under the 2020 Equity Incentive Plan (the
“2020 Plan”) and the 2020 Employee Stock Purchase Plan (“2020 ESPP”). The number of shares of Class A Common Stock
available for issuance under the 2020 Plan is subject to an annual increase on the first day of each calendar year beginning on January
1, 2021 and ending on (and including) January 1, 2029 by an amount equal to the lesser of (i) five percent (5%) of the number of shares
of all classes of the Registrant’s common stock outstanding on the last day of the immediately preceding fiscal year and (ii) such
smaller number of shares of all classes of the Registrant’s common stock as determined by the Registrant’s Board of Directors
(the “Board”) (the “2020 Plan Evergreen Provision”). The number of shares of Class A Common Stock available for
issuance under the 2020 ESPP is subject to an annual increase on the first day of each calendar year beginning on January 1, 2021 and
ending on (and including) January 1, 2029 by an amount equal to the least of (i) one percent (1%) of the number of shares of Class A Common
Stock outstanding as of the date on which the registration statement covering the initial public
offering of Class A Common Stock was declared effective by the Commission, (ii) one percent (1%) of number of shares of all classes
of the Registrant’s common stock outstanding on the final day of the immediately preceding calendar year or (iii) such smaller number
of shares of Class A Common Stock as determined by the Board (the “ESPP Evergreen Provision”). On January 1, 2024, the number
of shares of Class A Common Stock available for issuance pursuant to the 2020 Plan Evergreen Provision and the ESPP Evergreen Provision
increased by 14,424,425 and 1,981,644 shares, respectively (the “2024 Evergreen Shares”). This Registration Statement registers
the 2024 Evergreen Shares.
This Registration Statement hereby incorporates
by reference the contents of the Registrant’s Registration Statements on Form S-8 filed with the Commission on September 18, 2020
(File No. 333-248894), on June 24, 2022 (File No. 333-265834) and on October 6, 2023 (File No. 333-274896), to the extent not superseded
hereby.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant
with the Commission under the Securities Act of 1933, as amended (the “Securities Act”) or the Securities Exchange Act of
1934, as amended (the “Exchange Act”), are incorporated herein by reference:
(a) The Registrant’s Annual Report on Form
10-K for the fiscal year ended December 31, 2023 filed by the Registrant with the Commission on February 15, 2024, which contains the
Company’s audited financial statements for the latest fiscal year for which such statements have been filed; and
(d) The description of the Registrant’s
securities included in Exhibit 4.7 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023.
In addition, all documents subsequently filed
by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than documents or any information therein
deemed to have been furnished and not filed in accordance with rules of the Commission), prior to the filing of a post-effective amendment
to this Registration Statement, which indicates that all securities offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing
of such documents.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein), modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration Statement.
Item 8. Exhibits.
|
Exhibit Number |
|
| 4.1 |
Form of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of the Registrant’s Amendment No. 1 to Registration Statement on Form S-1, No. 333-248309, filed on September 8, 2020) |
| 4.2 |
Form of Bylaws (incorporated by reference to Exhibit 3.2 of the Registrant’s Amendment No. 1 to Registration Statement on Form S-1, No. 333-248309, filed on September 8, 2020) |
| 4.3 |
Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 of the Registrant’s Registration Statement on Form S-1, No. 333-248309, filed on August 24, 2020) |
| 4.4 |
Second Amended and Restated Investors’
Rights Agreement, dated October 8, 2010, as amended on November 1, 2016, May 29, 2018 and September 5, 2019 (incorporated by reference
to Exhibits 4.2, 4.3, 4.4 and 4.5 of the Registrant’s Registration Statement on Form S-1, No. 333-248309, filed on August 24, 2020) and Amendment No. 5 and Joinder to Second Amended and Restated Investors’ Right Agreement, dated September 21, 2020 (incorporated by reference to Exhibit 10.1 of the Registrations Current Report on Form 8-K, No. 001-39515, filed on September 22, 2020) |
| 5.1* |
Opinion of Davis Polk & Wardwell LLP |
| 23.1* |
Consent of PricewaterhouseCoopers LLP |
* Filed
herewith.
SIGNATURES
Pursuant to the requirements of the Securities
Act, the Registrant, American Well Corporation, certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Boston, Commonwealth of Massachusetts, on the 16th day of February, 2024.
| |
AMERICAN WELL CORPORATION
|
| |
By: |
/s/ Ido Schoenberg |
| |
|
Name: |
Ido Schoenberg |
| |
|
Title: |
Chairman and co-Chief Executive Officer |
| |
|
|
| |
By: |
/s/ Roy Schoenberg |
| |
|
Name: |
Roy Schoenberg |
| |
|
Title: |
President and co-Chief Executive Officer |
POWER OF ATTORNEY AND SIGNATURES
Know all persons by these presents, that each
person whose signature appears below constitutes and appoints Ido Schoenberg, Roy Schoenberg and Bradford Gay, and each of them, as his
or her true and lawful attorney-in-fact and agents, upon the action of such appointee, with full power of substitution and resubstitution,
to do any and all acts and things and execute, in the name of the undersigned, any and all instruments which each of said attorneys-in-fact
and agents may deem necessary or advisable in order to enable American Well Corporation to comply with the Securities Act, and any requirements
of the Commission in respect thereof, in connection with the filing with the Commission of this Registration Statement under the Securities
Act, including specifically but without limitation, power and authority to sign the name of the undersigned to such Registration Statement,
and any amendments to such Registration Statement (including post-effective amendments), and to file the same with all exhibits thereto
and other documents in connection therewith, with the Commission, to sign any and all applications, registration statements, notices or
other documents necessary or advisable to comply with applicable state securities laws, and to file the same, together with other documents
in connection therewith with the appropriate state securities authorities, granting unto each of said attorneys-in-fact and agents full
power and authority to do and to perform each and every act and thing requisite or necessary to be done in and about the premises, as
fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that each of
said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
| |
|
|
| /s/ Ido Schoenberg |
Chairman and co-Chief Executive Officer
(Principal Executive Officer and Director) |
February 16, 2024 |
| Ido Schoenberg, MD |
| |
|
|
| /s/ Roy Schoenberg |
President and co-Chief Executive Officer
(Principal Executive Officer and Director) |
February 16, 2024 |
| Roy Schoenberg, MD, MPH |
| |
|
|
| /s/ Robert Shepardson |
Chief Financial Officer
(Principal Financial Officer) |
February 16, 2024 |
| Robert Shepardson |
| |
|
|
| /s/ Paul McNeice |
Chief Accounting Officer
(Principal Accounting Officer) |
February 16, 2024 |
| Paul McNeice |
| |
|
|
| /s/ Deval Patrick |
Director |
February 16, 2024 |
| Deval Patrick |
| |
|
|
| /s/ Stephen Schlegel |
Director |
February 16, 2024 |
| Stephen Schlegel |
| |
|
|
|
/s/ Dr. Peter Slavin |
Director |
February 16, 2024 |
| Dr. Peter Slavin |
| |
|
|
| /s/ Derek Ross |
Director |
February 16, 2024 |
| Derek Ross |
| |
|
|
| |
|
|
| /s/ Dr. Delos (Toby) Cosgrove |
Director |
February 16, 2024 |
| Dr. Delos (Toby) Cosgrove |
| |
|
|
| /s/ Deborah Jackson |
Director |
February 16, 2024 |
| Deborah Jackson |
| |
|
|
| /s/ Rob Webb |
Director |
February 16, 2024 |
| Rob Webb |
| |
|
|
Exhibit 5.1 and 23.2
| |
|
|
draft |
 |
Davis Polk & Wardwell llp
450 Lexington Avenue
New York, NY 10017
davispolk.com |
|
|
American Well Corporation
75 State Street, 26th Floor
Boston, MA 02109 |
Ladies and Gentlemen:
We have acted as special counsel to American Well Corporation, a Delaware
corporation (the “Company”), and are delivering this opinion in connection with the Company’s Registration Statement
on Form S-8 (the “Registration Statement”) filed with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, as amended, for the registration of (i) 14,424,425 shares of the Company’s Class A Common Stock, par value $0.01 per
share (the “Class A Shares”), issuable pursuant to the Company’s 2020 Equity Incentive Plan (the “2020
Plan”) and (ii) 1,981,644 Class A Shares issuable pursuant to the Company’s 2020 Employee Stock Purchase Plan (the “ESPP,”
and together with the 2020 Plan, the “Plans”).
We, as your counsel, have examined originals or copies of such documents,
corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of
rendering this opinion.
In rendering the opinion expressed herein, we have, without independent
inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted
to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all
natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and
officers of the Company that we reviewed were and are accurate and (vi) all representations made by the Company as to matters of fact
in the documents that we reviewed were and are accurate.
On the basis of the foregoing, we are of the opinion that the Shares
have been duly authorized and, when and to the extent issued pursuant to the Plans upon receipt by the Company of the consideration for
the Shares specified therein, will be validly issued, fully paid and non-assessable.
We are members of the Bars of the States of New York and the District
of Columbia and the foregoing opinion is limited to the laws of the State of New York, the federal laws of the United States of America
and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act.
Very truly yours,
| |
| /s/ Davis Polk & Wardwell LLP |
Exhibit 23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby
consent to the incorporation by reference in this Registration Statement on Form S-8 of American
Well Corporation of our report dated February 15, 2024 relating to the financial statements and the effectiveness of internal control
over financial reporting, which appears in American Well Corporation's Annual Report on Form 10-K for the year ended December 31,
2023.
/s/ PricewaterhouseCoopers
LLP
Boston Massachusetts
February 16, 2024
Exhibit 107.1
FILING FEE TABLES FOR
FORM S-8
Calculation of Filing Fee Tables
Form S-8
(Form Type)
AMERICAN WELL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Newly Registered Securities
| Security Type |
Title of Each Class of Securities to be Registered |
Fee Calculation Rule |
Amount to be Registered(1) |
|
Proposed Maximum
Offering Price Per Share(2) |
|
Proposed Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee(3) |
| Equity |
Class A Common Stock, $0.01 par value per share, pursuant to the 2020 Equity Incentive Plan |
Rule 457(c) and Rule 457(h) |
14,424,425 |
|
$1.105 |
|
$15,938,990 |
0.0001476 |
$2,353 |
| Equity |
Class A Common Stock, $0.001 par value per share, pursuant to the 2020 Employee Stock Purchase Plan |
Rule 457(c) and Rule 457(h) |
1,981,644 |
|
$1.105 |
|
$2,189,717 |
0.0001476 |
$324 |
| |
Total |
|
16,406,069 |
|
|
|
$18,128,707 |
|
$2,580 |
| |
Total Fee Offsets(4) |
|
|
|
|
|
|
|
$0.00 |
| |
Net Fee Due |
|
|
|
|
|
|
|
$2,675.80 |
| (1) | Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement
on Form S-8 shall also cover any additional shares of the Registrant’s Class A common stock, $0.01 par value per share (“Class
A Common Stock”), that become issuable under the 2020 Equity Incentive Plan and the 2020 Employee Stock Purchase Plan by reason
of any stock dividend, stock split, recapitalization or other similar transaction affecting the Class A Common Stock. |
| (2) | Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee
based on the average of the high and low prices of Class A Common Stock as reported on the New York Stock Exchange on February 14, 2024. |
| (3) | Rounded to the nearest cent. |
| (4) | The Registrant does not have any fee offsets. |
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