Securities Registration: Employee Benefit Plan (s-8)
11 Janeiro 2022 - 7:10PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on January 11, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DOCGO INC.
(Exact name of registrant as specified in its
charter)
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Delaware
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85-2515483
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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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35 West 35th Street,
Floor 6,
New York, NY 10001
Telephone: (844) 443-6246
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Stan Vashovsky
Chief Executive Officer
35 West 35th Street, Floor 6,
New York, NY 10001
Telephone: (844) 443-6246
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
George Stamas
William Sorbella
Evan M. D’Amico
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Tel: (212) 351-4000
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.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☒
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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. ☐
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered(1)
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Amount
to be
Registered(2)
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Proposed
Maximum
Offering
Price
Per
Share(3)
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Proposed
Maximum
Aggregate
Offering
Price(3)
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Amount of
Registration Fee
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Common Stock, par value $0.0001
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24,511,540
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(4)
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$
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8.73
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$
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213,985,740.01
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$
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19,836.48
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(1)
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In addition to the number of shares of the common stock, par value $0.0001 per share (the “Common
Stock”) of DocGo Inc. (the “Company” or “Registrant”) stated above, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate
number of options and other rights to acquire Common Stock that may be granted pursuant to the DocGo Inc. 2021 Stock Incentive Plan
(the “Plan”). The number of shares of Common Stock reserved under the Plan will automatically increase on the first day
of each fiscal year (the “Automatic Increase”), starting on January 1, 2022 and continuing through January 1, 2031, in
an amount equal to 4.0% of the total number of shares of the Common Stock outstanding on December 31st of the preceding calendar
year or a lesser number of shares determined by the Board of Directors of the Company.
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(2)
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Pursuant to Rule 416(a) under the Securities Act, this registration
statement also covers any additional securities that may from time to time be offered or issued in respect of the securities registered
by this registration statement to prevent dilution as a result of any stock dividend, stock split, recapitalization or other similar
transaction, and any other securities with respect to which the outstanding shares are converted or exchanged.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and 457(h) under the Securities Act based upon the average of the high and low prices of the Common Stock on January 10, 2022, as reported on the Capital Market of the Nasdaq Stock Market LLC, under the symbol “DCGO.”
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(4)
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Represents (i) 16,607,894 shares of Common Stock initially
authorized pursuant to the Plan, (ii) 4,002,778 shares of Common Stock authorized pursuant to the Automatic Increase, and (iii) 3,900,868
shares of Common Stock underlying the Substitute Awards (as defined in the Plan).
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EXPLANATORY NOTE
This Registration Statement on Form S-8 is
being filed by DocGo Inc., a Delaware corporation (the “Company”), relating to 24,511,540 shares of its common stock, par
value $0.0001 per share (the “Common Stock”), available for issuance pursuant to awards to eligible persons under the DocGo
Inc. 2021 Stock Incentive Plan (the “Plan”).
PART I
Item 1.
Plan Information.
The documents containing the information specified
in Part I of Form S-8 will be delivered to employees as specified by Rule 428(b)(1) of the Securities Act. In accordance with
the instructions of Part I of Form S-8, such documents are not being filed with the Securities and Exchange Commission (the
“Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule
424 of the Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item
3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
The following documents, previously filed by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated
by reference in this Registration Statement and deemed to be a part hereof:
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(1)
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The prospectus dated January
3, 2022, filed by the Registrant with the Commission pursuant to Rule 424(b)(3) under the Securities Act of 1933, as amended (the “Securities
Act”), on January 3, 2022, relating to the Registration Statement on Form S-1, as amended (Registration No. 333-261363), which
contains the Company’s audited financial statements for the latest fiscal year for which such statements have been filed and the
description of the Common Stock; and
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(2)
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The current reports on Form 8-K
and amendments to current reports on Form 8-K filed by the Company with the Commission on March 9, 2021, March 18, 2021, April 29, 2021, May 13, 2021, May 21, 2021, May 28, 2021, July 20, 2021, November 12, 2021, November 15, 2021, November 23, 2021, and December 1, 2021.
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In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof, but prior to the filing of a post-effective amendment to
this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters all such 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 filing of such documents. Notwithstanding the foregoing, we are not incorporating by reference (i) any information furnished under
Items 2.02 or 7.01 (or corresponding information furnished under Item 9.01 or included as an exhibit) in any past or future current report
on Form 8-K or (ii) any Form S-D, that, in either case, we may file or furnish with the Commission,
unless otherwise specified in such current report or in such form or in a particular prospectus supplement.
Any statement, including financial statements, 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 therein or in any other subsequently filed document which also is or is 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
4. Description of Securities.
Not
applicable.
Item 5. Interests of Named Experts and Counsel.
Not
applicable.
Item 6. Indemnification of Directors and Officers.
The
Company is a Delaware corporation. The Company’s certificate of incorporation and bylaws provide for the indemnification of current
and former officers and directors of the Company to the fullest extent permitted by Delaware law. The Company’s certificate of
incorporation and bylaws provide that the Company will indemnify, and pay expenses to, any officer or director to the fullest extent
authorized by the Delaware General Corporation Law (the “DGCL”).
Section 145
of the DGCL provides that a corporation may indemnify directors and officers and other employees and individuals against expenses, including
attorneys’ fees, judgments, fines, and amounts paid in settlement in connection with specified actions, suits, and proceedings
whether civil, criminal, administrative, or investigative, other than a derivative action by or in the right of the corporation, if they
acted in good faith and in a manner they 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 their conduct was unlawful. A similar standard is applicable
in the case of derivative actions, except that indemnification extends only to expenses, including attorneys’ fees, incurred in
connection with the defense or settlement of such action and the statute requires court approval before there can be any indemnification
where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation’s certificate of incorporation, bylaws, disinterested director vote, stockholder
vote, agreement, or otherwise.
Further,
the Company maintains directors’ and officers’ insurance to cover its directors and officers for certain liabilities.
The
Company has entered into written indemnification agreements with its directors and executive officers. The indemnification agreements
provide its directors and executive officers with contractual rights to indemnification to the fullest extent permitted under the DGCL,
subject to certain exceptions contained in those agreements.
Item 7. Exemption from Registration Claimed.
Not
applicable.
Item 8. Exhibits.
Item 9. Undertakings.
(a)
The Company hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement;
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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; and
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b)
The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration
Statement 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.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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 Company 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 and will be governed by the final adjudication of such issue.
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it
meets all 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 New York, State of New York, on this 11th day of January, 2022.
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DOCGO INC.
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By:
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/s/ Stan
Vashovsky
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Name:
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Stan
Vashovsky
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Title:
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Chief
Executive Officer
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POWER
OF ATTORNEY
NOW
BY ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Stan Vashovsky and Andre Oberholzer
and each of them, his or her true and lawful attorney-in-fact and agents with full and several power of substitution, for him or her
and his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them full power and authority to do
and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents or any of them, or
their substitutes, may lawfully do or cause to be done.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons
in the capacities and the dates indicated.
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Name
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Title
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Date
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/s/ Stan Vashovsky
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Chief Executive Officer; Director; Chairman of the
Board of Directors
(principal executive officer)
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January 11, 2022
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Stan Vashovsky
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/s/ Andre Oberholzer
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Chief Financial Officer
(principal financial officer and principal accounting
officer)
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January 11, 2022
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Andre Oberholzer
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/s/ Chris Fillo
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Director
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January 11, 2022
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Chris Fillo
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/s/ Ely D. Tendler
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Director; General Counsel and Secretary
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January 11, 2022
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Ely D. Tendler
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/s/ Ira Smedra
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Director
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January 11, 2022
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Ira Smedra
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/s/ Steven Katz
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Director
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January 11, 2022
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Steven Katz
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/s/ James M. Travers
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Director
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January 11, 2022
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James M. Travers
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/s/ Michael Burdiek
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Director
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January 11, 2022
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Michael Burdiek
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