United States securities and exchange commission logo
June 16, 2022
Jeffery R. Bray
Stockholder Representative
UpHealth Concerned Stockholders
2083 Walker Lane
Holladay, Utah 84117
Re: UpHealth, Inc.
PREC14A filed June
10, 2022
Filed by the
UpHealth Concerned Stockholders
SEC File No.
1-38924
Dear Mr. Bray:
We have reviewed your filing and have the following comments. In
some of our
comments, we may ask you to provide us with information so we may better
understand your
disclosure.
Please respond to these comments by providing the requested
information or advise us as
soon as possible when you will respond. If you do not believe our
comments apply to your facts
and circumstances, please tell us why in your response.
After reviewing your response to these comments, we may have
additional comments.
All defined terms used here have the same meaning as in your proxy
statement, unless otherwise
indicated.
PREC14A filed June 10, 2022
General
1. The disclosure in the
UpHealth Concerned Stockholders ("Group") proxy statement lists
the Group's three
candidates for election to the Board of Directors of UpHealth, and
includes their
background information and credentials, along with a discussion of why the
Company "needs a fresh
prospective [sic] from three new highly qualified independent
directors." However, it
appears that, according to your own disclosure, the Group missed
the Company's deadline
for director nominations under UpHealth's advance notice bylaw
provision and the
Company declined to waive or modify that deadline when the
Group requested that it
do so. Therefore, it appears that the Group's nominees do not
currently qualify for
election at the 2022 Annual Meeting. Please revise generally
throughout the proxy
statement to advise that a vote for your nominees will be invalid
Jeffery R. Bray
FirstName LastNameJeffery R. Bray
UpHealth Concerned Stockholders
Comapany
June NameUpHealth Concerned Stockholders
16, 2022
June 16,
Page 2 2022 Page 2
FirstName LastName
unless the advance notice bylaw provision is waived or modified. If
you disagree, please
explain the basis for your position and note that it is subject to
challenge. In addition,
explain whether the action brought in Delaware Court by the Group and
the preliminary
injunction hearing set to occur on June 23, 2022 will address the
issue of the nomination
deadline under the bylaw provision. Currently, the description in your
proxy statement
notes that the hearing will address the issue of enjoining the Annual
Meeting currently
scheduled for June 28, 2022.
2. See our last comment above. The disclosure in the proxy statement
leads shareholders to
believe that they may vote for the Group's nominees for election to
the Board of
Directors. However, the form of proxy card included with your filing
lists only the names
of the Company's nominees and provides a means for shareholders to
vote "for" or
"withhold" authority to vote for them. A proxy may confer authority
only to vote for a
"bona fide nominee," who, in this case, is someone who has consented
to being named in
your own proxy statement and included on your own proxy card. See Rule
14a-4(d)(1)
and Exchange Act Release No. 34-93596, in particular Section II.K of
that release. Unless
the Company's nominees have consented to being included on the Group's
proxy card,
they may not be included there and you may not solicit votes for the
Company's nominees
on your proxy card. It is possible to conduct a "vote no" campaign
against the Company's
nominees, but your disclosure must make clear that under a plurality
voting standard,
those nominees will be elected if they receive even only a single
vote. Please revise or
advise.
3. Fill in the blanks throughout the proxy statement. Information that is
subject to change
should be bracketed until finalized.
4. To the extent that disclosure is required under Schedule 14A but is
contained in another
soliciting party's proxy statement, you may refer shareholders to that
information as
specified in Rule 14a-5(c). Here, directors will be elected at the
Annual Meeting and
some of the participants in your solicitation are existing directors
of the Company or are
otherwise affiliated with it, including in management positions. See
Item 7 of
Schedule 14A and Rule 14a-5(c).
5. Provide the disclosure required by Item 23 of Schedule 14A.
Background to the Solicitation, page 8
6. Describe any settlement negotiations or discussions between members of
the Group and
the Company.
7. Provide background in this section about how and when the UpHealth
Concerned
Stockholders Group was formed.
Reasons for the Solicitation, page 10
8. See our comment above. The disclosure indicating that you are seeking
to elect three new
independent directors is confusing when compared to your proxy card,
which does
Jeffery R. Bray
FirstName LastNameJeffery R. Bray
UpHealth Concerned Stockholders
Comapany
June NameUpHealth Concerned Stockholders
16, 2022
June 16,
Page 3 2022 Page 3
FirstName LastName
not permit shareholders to vote for your nominees, and the disclosure
indicating that your
candidates were not nominated in compliance with the Company's advance
notice bylaw
provisions. Including your nominees' bios here further confuses
shareholders in this
regard. Please revise here and throughout the proxy statement to
clarify that shareholders
currently are not being asked to vote in favor of your director
nominees. In turn, revise
the proxy statement to explain the effect of your solicitation, given
that directors will
apparently be elected by a plurality voting standard, absent a
Delaware Court decision in
your favor.
9. We note the disclosure here and throughout the proxy statement about
the need for new
leadership at the Company. Please revise to balance this disclosure by
noting that two
members of the Concerned Stockholders Group are existing directors of
the Company,
one was the Chairman of the Board, and multiple other members of the
Group are
members of management or otherwise affiliated with the Company. In
this regard, revise
the disclosure to be more specific about what changes you believe are
needed at the
Company that could not be implemented under existing leadership, which
includes
members of the Group.
10. Clarify what is meant by the statement that "[t]he stockholders of
UpHealth should be
afforded the opportunity to realize the full value of their shares,
which they have not been
able to do within the past year of their investment." Explain what, in
your view, would
allow stockholders to realize that value. If you are referring to a
sale of the Company or
other extraordinary transaction, please specifically describe. In
addition, clarify the
reference to the last year as a time frame.
Proposal 1: Election of Directors Nominated by the Company, page 12
11. See our additional comments in this letter. Revise to clarify that you
are not soliciting
authority to vote for your own director nominees.
12. See our comments above. Clarify here that if there are no opposing
nominees, the
Company's director candidates will be elected if they receive even a
single vote and that
the Company's nominees will be elected (absent a favorable Delaware
Court decision)
unless you are successful in preventing a quorum at the Annual
Meeting.
Proposal 2: Ratification of Appointment of Independent Registered Public
Accounting Firm,
page 12
13. Clarify, if true, that shareholders who wish to vote for the
ratification of Plante & Moran,
PLLC as you recommend will be disenfranchised if you determine not to
present
their proxies in order to prevent a quorum at the Annual Meeting.
Solicitation and Proxy Procedures, page 13
14. Under "Quorum," indicate whether shares owned by members of the
Concerned
Stockholders Group will be present for purposes of determining a
quorum. Since they
Jeffery R. Bray
FirstName LastNameJeffery R. Bray
UpHealth Concerned Stockholders
Comapany
June NameUpHealth Concerned Stockholders
16, 2022
June 16,
Page 4 2022 Page 4
FirstName LastName
own over 50% of the shares, clarify what percentage of the remaining
shares must be
present at the Annual Meeting for a quorum to exist and how many of
the remaining
shares are held by affiliates not associated with the Concerned
Stockholders Group.
15. Describe what will occur if there is not a quorum present at the
Annual Meeting.
16. The statement that "your shares will be counted towards the quorum if
you submit a valid
proxy (or one is submitted on your behalf by your broker or bank)..."
is confusing because
you are soliciting proxies here with the possible intent to prevent a
quorum. Please
explain or qualify your assertion.
Information Concerning the UpHealth Concerned Stockholders, page 16
17. Given their existing affiliation with the Company, which should be
further described in
the proxy statement in response to these comments, describe any
interests of the
participants in this solicitation that are not shared by other
shareholders. See Item 5(b)(1)
of Schedule 14A. As one example only, note whether the solicitation
could affect the
terms of their employment with the Company.
18. We note the disclosure that two of the UpHealth Concerned Stockholders
serve on the
Board of the Company and that "a number of the other UpHealth
Concerned Stockholders
either currently or in the past have served as officers, employees or
consultants to the
Company." Expand the disclosure here and earlier in the proxy
statement where the
members of the UpHealth Concerned Stockholders are identified, to
specifically describe
each member's position with the Company (including dates) or any other
employment
they hold. See Item 5(b)(1)(ii) of Regulation 14A.
19. Please provide the disclosure required by Item 5(b)(1)(vi) - (xii) of
Schedule 14A for each
participant in this solicitation.
Form of Proxy, page 18
20. See our comments above regarding general aspects of presentation of
information on your
proxy card. In addition, we believe the following statement is
inconsistent with disclosure
in the proxy statement and elsewhere on your proxy card: "...if you
sign and return
a BLUE proxy card or otherwise vote as directed herein, but do not
mark how your shares
are to be voted, the individuals named as proxies herein will vote
your shares in
accordance with the above recommendations of the UpHealth Concerned
Stockholders."
As you know, the Group recommends a vote for the ratification of the
Company's auditors
and a withhold vote for the Company's director candidates. However,
the intent to vote
signed but unmarked proxies appears to be inconsistent with your
intent to prevent a
quorum at the Annual Meeting by not presenting those proxies,
including proxies which
are signed and voted. The phrase "or otherwise vote as directed" in
the above statement is
also confusing. Please revise to clarify.
Jeffery R. Bray
UpHealth Concerned Stockholders
June 16, 2022
Page 5
21. The limits of the discretionary authority of a proxy holder are
enumerated by Rule 14a-
4(c). Please revise the statement about your discretionary authority
to vote the proxies
granted to you, consistent with the scope of that Rule.
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
Please direct any questions to Christina Chalk at (202) 551-3263.
FirstName LastNameJeffery R. Bray Sincerely,
Comapany NameUpHealth Concerned Stockholders
Division of
Corporation Finance
June 16, 2022 Page 5 Office of Mergers
& Acquisitions
FirstName LastName