Confidentially submitted as Amendment No. 1 to the Securities and Exchange Commission on September 4, 2018
This draft registration statement has not been publicly filed with the Securities and Exchange Commission
and all information herein remains strictly confidential.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Caliburn International Corporation
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 8741 | 83-1604096 | ||
| (State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification No.) |
10701 Parkridge Boulevard, Suite 200
Reston, Virginia 20191
(703) 261-0320
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Thomas J. Campbell
Chairman
Caliburn International Corporation
10701 Parkridge Boulevard, Suite 200
Reston, Virginia 20191
(703) 261-0320
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| Kenneth Suh Colin J. Diamond F. Holt Goddard White & Case LLP 1221 Avenue of the Americas New York, NY 10020 Telephone: (212) 819-8200 Facsimile: (212) 354-8113 | Michael J. Zeidel Skadden, Arps, Slate, Meagher & Flom LLP 4 Times Square New York, NY 10036 Telephone: (212) 735-3000 Facsimile: (212) 735-2000 |
Approximate date of commencement of the proposed sale of the securities to the public: As soon as practicable after the Registration Statement is declared effective.
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☐
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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. ☐
CALCULATION OF REGISTRATION FEE
| ||||
| TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED | PROPOSED MAXIMUM AGGREGATE OFFERING PRICE (1)(2) | AMOUNT OF REGISTRATION FEE | ||
Class A common stock, par value $0.01 per share | $ | $ | ||
| ||||
| ||||
| (1) | Estimated solely for the purpose of determining the amount of the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
| (2) | Includes shares of Class A common stock subject to the underwriters’ option to purchase additional shares of Class A common stock, if any. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses payable by the Registrant expected to be incurred in connection with the issuance and distribution of common stock being registered hereby (other than underwriting discounts and commissions). All of such expenses are estimates, except for the Securities and Exchange Commission (the “SEC”) registration fee, the Financial Industry Regulatory Authority Inc. (“FINRA”) filing fee and the filing fee and listing fee.
| AMOUNT | ||
| SEC registration fee | * | |
| FINRA filing fee | * | |
| Stock exchange listing fee | * | |
| Printing and engraving expenses | * | |
| Legal fees and expenses | * | |
| Accounting fees and expenses | * | |
| Transfer agent and registrar fees | * | |
| Miscellaneous expenses | * | |
| ||
| Total | * | |
|
| * | To be filed by amendment. |
Item 14. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our amended and restated certificate of incorporation will provide for this limitation of liability.
Section 145 of the DGCL (“Section 145”), provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be made, 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 such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, provided further that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) which such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation 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
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director, officer, employee or agent of another corporation or enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify such person under Section 145.
Our amended and restated bylaws will provide that we must indemnify and advance expenses to our directors and officers to the full extent authorized by the DGCL.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, any provision of our amended and restated certificate of incorporation, our amended and restated bylaws, agreement, vote of stockholders or disinterested directors or otherwise. Notwithstanding the foregoing, we shall not be obligated to indemnify a director or officer in respect of a proceeding (or part thereof) instituted by such director or officer, unless such proceeding (or part thereof) has been authorized by the Board of Directors pursuant to the applicable procedure outlined in the amended and restated bylaws.
Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held jointly and severally liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of the Board of Directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
We expect to maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
The underwriting agreement provides for indemnification by the underwriters of us and our officers and directors, and by us of the underwriters, for certain liabilities arising under the Securities Act or otherwise in connection with this offering.
Item 15. Recent Sales of Unregistered Securities.
During the past three years, we have not issued any securities exempt from registration under the Securities Act.
Item 16. Exhibits and Financial Statement Schedules.
| (a) | Exhibits. See the Exhibit Index immediately following the signature page hereto, which is incorporated by reference as if fully set forth herein. |
| (b) | Financial Statement Schedules. All schedules are omitted because the required information is either not present, not present in material amounts or presented within the consolidated financial statements included in the prospectus and are incorporated herein by reference. |
Item 17. Undertakings.
The undersigned registrant hereby undertakes to provide to the underwriters, at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
| (1) | 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 foregoing provisions, 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 Securities Act of 1933 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, 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 Securities Act of 1933 and will be governed by the final adjudication of such issue. |
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| (2) | The undersigned Registrant hereby undertakes that: |
| (A) | For purposes of determining any liability under the Securities Act of 1933, 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. |
| (B) | For the purpose of determining any liability under the Securities Act of 1933, 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. |
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EXHIBIT INDEX
EXHIBIT NO. | DESCRIPTION | |
| 1.1* | Form of Underwriting Agreement | |
| 3.1* | Form of Amended and Restated Certificate of Incorporation of the Registrant | |
| 3.2* | Form of Amended and Restated Bylaws of the Registrant | |
| 4.1* | Specimen Stock Certificate evidencing shares of Class A common stock | |
| 4.2* | Form of Registration Rights Agreement, to be effective upon completion of this offering | |
| 5.1* | Opinion of White & Case LLP | |
| 10.1* | Form of Tax Receivable Agreement, to be effective upon completion of this offering | |
| 10.2* | Form of Exchange Agreement, to be effective upon completion of this offering | |
| 10.3* | Amended and Restated LLC Agreement of Caliburn Holdings LLC | |
| 10.4* | Credit Agreement dated as of August 14, 2018, among Caliburn Holdings LLC, Caliburn International, LLC, as the Borrower, Bank of America, N.A., as Administrative Agent, Swing Line Lender and Line of Credit Issuer, and the lenders party thereto | |
| 10.5# | Balad Base Support Contract, dated January 30, 2018, by and between Sallyport Global Holdings Inc. and AFLCMC/WFK | |
| 10.6* | Fourth Amendment to Office Deed of Lease, dated as of August 22, 2017, between DIP SPV Company 6, LLC, and Comprehensive Health Services, Inc. | |
| 10.7*† | Caliburn International Corporation 2018 Equity Incentive Plan | |
| 10.8*† | Employment Agreement between CHSi and Mr. Van Dusen, dated October 7, 2013, as amended November 12, 2015 | |
| 10.9* | Form of Indemnification Agreement | |
| 21.1* | List of Subsidiaries of Caliburn International Corporation | |
| 23.1* | Consent of RSM US LLP | |
| 23.2* | Consent of Pugh CPAs | |
| 23.3* | Consent of Dixon Hughes Goodman LLP | |
| 23.2* | Consent of White & Case LLP (included as part of Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on signature page to this Registration Statement) | |
| * | To be filed by amendment. |
| # | Confidential treatment requested as to certain portions, which portions will be omitted and filed separately with the Securities and Exchange Commission. |
| † | Identifies exhibits that consist of a management contract or compensatory plan or arrangement. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Alexandria, State of Virginia, on the day of , 2018.
| CALIBURN INTERNATIONAL CORPORATION | ||
| By: |
| |
| Name: | Thomas J. Campbell | |
| Title: | Chairman of the Board of Directors |
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below hereby constitutes and appoints Thomas J. Campbell, Douglas T. Lake Jr., James D. Van Dusen, James M. Kempton and William O. King III, and each of them, any of whom may act without joinder of the other, the individual’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for the person and in his or her name, place and stead, in any and all capacities, to sign this Registration Statement and any or all amendments, including post-effective amendments to the Registration Statement, including a prospectus or an amended prospectus therein and any Registration Statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all other documents in connection therewith to be filed 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 attorneys-in-fact as agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement and Power of Attorney have been signed by the following persons in the capacities indicated on , 2018.
SIGNATURE | TITLE | |
Thomas J. Campbell | Chairman of the Board of Directors | |
Douglas T. Lake Jr. | Vice Chairman of the Board of Directors | |
James D. Van Dusen | Chief Executive Officer (Principal Executive Officer) | |
James M. Kempton | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | |
Kara L. Bue | Director | |
T. Gail Dady | Director | |
Vice Admiral Frank C. Pandolfe | Director | |
SIGNATURE | TITLE | |
Admiral James G. Stravridis | Director | |
Jeffery C. Weber | Director | |
General Anthony C. Zinni | Director | |
