Delaware
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84-2968594
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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14543 Global Parkway, Suite 110
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Fort Myers, FL
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33913
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(Address of Principal Executive Offices)
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(Zip Code)
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Smaller reporting company ☒
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Emerging growth company ☒
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Item 3. |
Incorporation of Documents by Reference.
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Item 4. |
Description of Securities.
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Item 5. |
Interests of Named Experts and Counsel.
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Item 6. |
Indemnification of Directors and Officers.
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(a)
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A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was 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, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
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(b)
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A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the person is or was 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 against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
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(c)
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To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
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(d)
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Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification
of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made,
with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of
such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the
stockholders.
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(e)
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Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified
by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former officers and directors or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation
deems appropriate.
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(f)
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The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity
while holding such office. A right to indemnification or to advancement of expenses arising under a provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to such provision after the
occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the
time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
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(g)
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A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was 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 against any liability asserted against such person and incurred by such person in any such capacity, or
arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section.
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(h)
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For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the
same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
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(i)
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For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this section.
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(j)
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The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
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(k)
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The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any by law, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees).
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Item 7. |
Exemption from Registration Claimed.
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Item 8. |
Exhibits.
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Exhibit
No.
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Description
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Second Amended & Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.2 of the Company’s Current Report on Form 8-K filed September 26, 2023).
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Amended and Restated Bylaws of the registrant (incorporated by reference to Exhibit 3.3 to the current report on Form 8-K filed with the Commission on September 26, 2023).
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Opinion of Dentons US LLP.
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.
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Consent of Dentons US LLP (included in Exhibit 5.1).
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Power of Attorney (included on signature page of this registration statement).
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AON 2023 Incentive Equity Plan (incorporated by reference to Exhibit 10.4 of the Company’s Current Report on Form 8-K filed September 26, 2023).
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107* |
Filing Fee Table |
Item 9. |
Undertakings.
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AMERICAN ONCOLOGY NETWORK, INC.
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By:
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/s/ Todd Schonherz
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Name:
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Todd Schonherz
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Title:
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Chief Executive Officer
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Signature
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Title
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Date
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/s/ Todd Schonherz
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Chief Executive Officer and Director
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November 27, 2023
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Todd Schonherz
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(Principal Executive Officer)
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/s/ David H. Gould
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Chief Financial Officer (Principal Financial Officer and
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November 27, 2023
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David H. Gould
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Principal Accounting Officer)
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/s/ Fred Divers, MD
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Chief Medical Officer and Director
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November 27, 2023
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Stephen “Fred” Divers, MD
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/s/ Bradley Fluegel
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Director
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November 27, 2023
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Bradley Fluegel
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/s/ James Stith
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Director
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November 27, 2023
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James Stith
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/s/ Ravi Sarin
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Director
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November 27, 2023
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Ravi Sarin
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Dentons US LLP
1221 Avenue of the Americas
New York, NY 10020-1089
United States
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Very truly yours
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/s/ Dentons US LLP
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Dentons US LLP
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Security
Type
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Security
Class Title
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Fee
Calculation
Rule
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Amount
Registered(1)
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Proposed
Maximum
Offering
Price Per
Unit
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Maximum
Aggregate Offering
Price
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Fee Rate
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Amount of
Registration
Fee
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Equity
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Class A Common stock, $0.0001 par value per share
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Rule 457(c) and 457(h) of the Securities Act of 1933 (2)
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5,300,000(3)
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$6.44
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$34,132,000
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$0.00014760
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$5,037.89
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Total Offering Amounts
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$34,132,000
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$5,037.89
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Total Fee Offsets(4)
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—
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Net Fee Due
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$5,037.89
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock, $0.0001 par value per share (“Common Stock”), of
American Oncology Network, Inc. (the “Registrant”) that become issuable under the American Oncology Network, Inc. 2023 Incentive Equity Plan (the “2023 Plan”) by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock.
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(2)
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Estimated in accordance with Rules 457(c) and 457(h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of $6.44 per share, which is the average of the high and low prices of the Registrant’s
Common Stock on , 2023, as reported on the Nasdaq Capital Market.
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(3)
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Represents 5,300,000 shares of Class A Common Stock reserved for issuance pursuant to the 2023 Plan.
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(4)
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The Registrant does not have any fee offsets.
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