Correspondence 0001104659-22-117242 from OneMedNet Corp (ONMD)
OneMedNet Corp
Date: Nov. 10, 2022 · CIK: 0001849380 · Accession: 0001104659-22-117242
AI Filing Summary & Sentiment
File numbers found in text: 333-266274
Referenced dates: October 19, 2022
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NELSON
MULLINS RILEY & SCARBOROUGH LLP
ATTORNEYS AND COUNSELORS AT LAW
Larry Shackelford
T: 404.322.6173
larry.shackelford@nelsonmullins.com
201 17th Street NW, Suite 1700
Atlanta, GA 30363
T: 404.322.6000 F: 404.322.6050
nelsonmullins.com
November 10, 2022
Via EDGAR
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Attention: Ms. Taylor Beech
Ms. Erin Jaskot
RE: Data Knights Acquisition Corp.
Amendment No. 2 to Registration on Form S-4
Filed November 10, 2022
File No. 333-266274
Ladies and Gentlemen:
On behalf of Data Knights Acquisition Corp. (the “Company”),
we are hereby responding to the letter dated October 19, 2022 (the “Second Comment Letter”) from the staff (the “Staff”)
of the Securities and Exchange Commission (“SEC” or the “Commission”), regarding the Company’s Amendment
No. 1 to Registration Statement on Form S-4 filed September 30, 2022 (the “Registration Statement”). In response to the Second
Comment Letter and to update certain information in the Registration Statement, the Company is submitting its Amendment No. 2 to the Registration
Statement (the “Amended Registration Statement”) with the Commission today.
Capitalized terms used but not defined in this letter have the meanings
as defined in the Amended Registration Statement.
For ease of reference, the text of the Staff’s comment is included
in bold-face type below, followed by the Company’s response.
California |
Colorado | District of Columbia | Florida | Georgia | Maryland | Massachusetts
Minnesota |
New York | North Carolina | Ohio | South Carolina | Tennessee | Texas | Virginia | West Virginia
Securities and Exchange Commission
November 10, 2022
Page 2
Summary Term Sheet, page 2
1. We reissue comment 3. Please identify the parties or the nature of the parties that are subject to the Lock-Up Agreements with
you and quantify the number of outstanding shares subject to such agreements. In this regard, we note that you have only included across reference
to the Merger Agreement on page 4 and you do not quantify the outstanding shares subject to such agreements in this section.
Response: The Summary Term Sheet in the Amended
Registration Statement has been revised on page 4 to identify the nature of the parties that are subject to the Lock-Up Agreements
and quantify the number of outstanding shares subject to such agreements.
Questions and Answers about the Proposals
What equity stake will current stockholders of Data Knights hold
after the Closing?, page 11
2. We note that you only showed the dilutive impact of certain additional issuances of common stock on one redemption scenario.
Please further revise the table to illustrate the dilutive impact of certain additional issuances of common stock on all redemption scenarios.
Please include all significant sources of dilution, including the exercise of Public and Private Placement Warrants and outstanding options.
In addition, please include the potential PIPE Investors and the shares that may be issued pursuant to the currently contemplated $30
million PIPE investment. Please ensure the disclosure reflects the anti-dilution provision that applies to founder shares, as discussed
on page 186.
Response: The table in the Amended Registration Statement
has been revised on pages 11 and 12 to disclose the dilutive impact of additional sources of dilution, including the exercise of
options and warrants, the PIPE shares and the anti-dilution provision for the founder shares.
3. We note your responses to comments 18 and 51 and reissue the comments. Please amend your disclosure to show the potential impact
of redemptions on the per share value of the shares owned by non-redeeming shareholders at each redemption level in your sensitivity analysis,
taking into account not only the money in the trust account, but the post-transaction equity value of the combined company. Your disclosure
should show the impact of certain equity issuances on the per share value of the shares, including the exercises of public and private
warrants, and the issuance of any potential PIPE shares.
Response: The Amended Registration Statement has been revised
to disclose the potential impact of redemptions on the per share value of the shares owned by non-redeeming shareholders at each redemption
level in your sensitivity analysis, taking into account not only the money in the trust account, but the post-transaction equity value
of the combined company, giving effect to the exercise of options and warrants and the issuance of the PIPE shares.
Securities and Exchange Commission
November 10, 2022
Page 3
4. We note your response to comment 52 and we reissue the comment, as we are not able to locate the responsive disclosure. It appears
that underwriting fees remain constant and are not adjusted based on redemptions. Revise your disclosure to disclose the effective underwriting
fee on a percentage basis for shares at each redemption level presented in your sensitivity analysis related to dilution.
Response: The Amended Registration Statement has been revised
to disclose the effective underwriting fee on a percentage basis for shares at each redemption level presented in the sensitivity analysis
related to dilution.
How much consideration will OneMedNet Stockholders receive in
connection with the Business Combination?, page 12
5. We reissue comment 6, as it appears the number you have provided assumes there are no inputs for any variables in the formula.
Revise to provide an illustrative example of the amount of consideration payable based upon the formula you disclose using a recent practicable
date associated with the various inputs to the formula, and disclose the value of each of the inputs used in making this calculation.
Revise to clarify, if true, that this amount will fluctuate and, if you know in which direction the inputs are likely to fluctuate, revise
to state as much and project the likely results of such fluctuation. Please include similar disclosure elsewhere that you discuss the
formula for determining the consideration, including on the prospectus cover page.
Response: The Amended Registration Statement has been revised
here and on the prospectus cover page to disclose in inputs to the formula as of September 30, 2022, that as of that date the adjustment
to the aggregate consideration would be zero, and that the Company’s expectations regarding future fluctuations in the amount.
How will Data Knights' Sponsor, directors, and officers vote?,
page 15
6. We note your revised disclosure in response to comment 7. Please further revise to disclose the number of Public Shares that
would need to be voted in favor of the Business Combination for it to be approved assuming only a quorum is present. In this regard, we
note that only a majority of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled
to vote thereon are required to approve the Business Combination.
Response: The answer in the Amended Registration Statement has
been revised to disclose the number of Public Shares required to vote in favor of the Business Combination assuming a quorum is present
in order for it to be approved.
Securities and Exchange Commission
November 10, 2022
Page 4
What interests do Data Knights' current officers and directors
have in the Business Combination?, page 16
7. We reissue comment 10. Where you disclose the various security ownership interests of the Sponsor, directors and officers, revise
to include the approximate dollar value of the interest based on the transaction value and recent trading prices as compared to the price
paid. In this regard, we note that you do not quantify the current value of the Placement Units or Founder Shares. Please also quantify
the value of any out-of-pocket expenses. Lastly, disclose that the Sponsor requested that the Company extend the date by which the Company
has to consummate a business combination and deposited an aggregate of $1,150,000 (representing $0.10 per public share) into the Company’s
trust account on August 11, 2022. Please include similar disclosure elsewhere in the prospectus where you discuss the interests of the
Sponsor, directors and officers.
Response: The Amended Registration Statement has been revised
to disclose here and elsewhere in the prospectus where the interests of the Sponsor, directors and officers are disclosed to include the
approximate dollar value of these interests based on the transaction value and recent trading prices as compared to the price paid, including
the current value of the Placement Units, the Founder Shares and out-of-pocket expenses, and to disclose that the Sponsor requested that
the Company extend the date by which the Company has to consummate a business combination and deposited an aggregate of $1,150,000 (representing
$0.10 per public share) into the Company’s trust account on August 11, 2022.
The Charter Amendment Proposals, page 27
8. Please provide us with your analysis as to why you are not required to unbundle certain material changes to the Data Knights'
Charter, such as the supermajority voting provision, and provide stockholders with a separate vote regarding these material changes. Refer
to Question 201.01 of the Division's Exchange Act Rule 14a-4(a)(3) Compliance and Disclosure Interpretations.
Response: On behalf of the Company, we advise the Staff that
because the material changes reflected in the Charter Amendment Proposal are each a condition to the other proposals at the Special Meeting,
other than the Adjournment Proposal, including in particular the Business Combination Proposal, unbundling the material changes from
each other would not offer the stockholders a meaningful option to approve some of the changes and reject others and would serve only
to confuse stockholders and unnecessarily lengthen the Proxy Statement/Prospectus.
Securities and Exchange Commission
November 10, 2022
Page 5
Selected Financial and Other Data of OneMedNet, page 41
9. It appears you revised the headings of the OneMedNet
financial statements but did not update the actual amounts. Please revise the statement of
operation data and balance sheet data to agree to the historical financial statement
amounts disclosed on page 44.
Response: The Selected Financial and Other Data of OneMedNet
in the Amended Registration Statement has been revised to agree to the historical financial statement amounts.
Unaudited Pro Forma Condensed
Combined Financial Information
Unaudited Pro Forma Condensed
Combined Statement of Operations, page 44
10. We note your response to comment 12 but there are no adjustments reflected next to E and G in the financial information. Please
revise to include the adjustment amounts or otherwise advise.
Response: On behalf of the Company, we confirm for the Staff
that the relevant adjustments are less than $1,000 and accordingly are represented by dashes in light of the presentation in the tables
of dollar amounts in thousands.
Risk Factors, page 50
11. We reissue comment 1 in part. Please include a risk factor discussing the risk that failure to close a PIPE Investment could
leave the post-merger entity under-capitalized, and explain the consequences if this were to occur. Please add similar disclosure elsewhere
to clearly convey this risk, including in the Questions and Answers About the Proposals. In this regard, we note your disclosure on page
162 that "the most significant change in OneMedNet’s future reported financial position and results of operations is expected
to be an estimated increase in cash...of approximately $30 million...including up to $30 million in gross proceeds from the PIPE."
Please also discuss how failure to close a PIPE investment could impact your ability to meet the minimum cash condition for closing set
forth in Section 7.1(h) of the Merger Agreement, and revise throughout to disclose that the minimum cash condition is a condition to closing.
Response: The Amended Registration Statement has been revised
to include a risk factor on page 77 regarding consequences of a failure to close a PIPE investment, including OneMedNet’s
future financial position and results of operations and to clarify the minimum cash condition in Section 7.1(h) of the Merger Agreement.
Securities and Exchange Commission
November 10, 2022
Page 6
12. We reissue comment 14 in part. Please highlight the material risks to public warrant holders, including those arising from differences
between private and public warrants. Clearly explain the steps, if any, the company will take to notify all shareholders, including beneficial owners,
regarding when the warrants become eligible for redemption.
Response: The Risk Factors in the Amended Registration Statement
on pages 68-70 and 76 have been revised to highlight the material risks to public warrant holders to the extent they differ from
the material risks to private warrant holders and the common stock, and to explain the steps the Company would take to notify warrant
holders of a call for redemption of the warrants by the Company and the fact that warrant holders would have limited time to pursue alternatives
to such redemption. Supplementally on behalf of the Company we advise the Staff that the Company has not committed to notify warrant holders
when the conditions to redemption eligibility, including satisfaction of the price threshold, have been met except by means of a call
for redemption.
We have two significant customers..., page 50
13. Please remove the discussion of Siemens financial results and future outlook or tell us how the information provided here relates
directly to your contract with Siemens. For example, it is unclear how the demand for rapid COVID-19 antigen tests relates to your potential
future revenue from Siemens. To the extent that you retain any part of your discussion of Siemen's financial results, please disclose
specifically how this relates to your contract with Siemens.
Response: The Amended Registration Statement on page 51 has
been revised to remove the discussion of Siemens’ financial results and replaced it with an updated discussion of OneMedNet’s
revenue from Siemens.
Certain provisions of New OneMedNet's amended and restated certificate
of incorporation..., page 65
14. We note the addition of this risk factor in response to comment 15. Please further revise to clarify whether the exclusive forum
provision in the Data Knights' A/R Charter will apply to claims arising under the Securities Act and the Exchange Act, and discuss the
risks of such provision, including that it can discourage claims or limit investors’ ability to bring a claim in a judicial forum
that they find favorable. In addition, include a discussion of the risks related to the anti-takeover provisions that are included in
Data Knights' A/R Charter that you disclose on pages 199-200, including the limitations on a stockholder's ability to call a special meeting
and to act by written consent, the advance notice requirements for stockholder proposals and director nominations, and the classified
board of directors. Please also address the super majority vote that will be required to amend the Data Knight's A/R Charter and Bylaws.
Response: The Amended Registration Statement has been
revised to add additional risk factor disclosure on pages 61-62 to clarify that the exclusive forum provision in the Data Knights'
A/R Charter would apply to claims arising under the Securities Act and the Exchange Act consistent with federal court jurisdiction
for such claims, and to discuss the risks of such provision, the anti-takeover provisions that are included in Data Knights' A/R
Charter,