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Peter Smith
Partner
T 212.715.9401
F 212.715.8401
psmith@kramerlevin.com
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1177 Avenue of the Americas
New York, NY 10036
T 212.715.9100
F 212.715.8000
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Re: |
First Choice Healthcare Solutions, Inc.
PREN14A filed on June 9, 2020
Filed by VIA Acquisition Corp.
File No. 0-53012
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1. |
The proxy statement was incorrectly “tagged” as a PREN14A. The correct EDGAR tag is PREC14A. Please revise in future filings.
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KRAMER LEVIN NAFTALIS & FRANKEL LLP
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PARIS | NEW YORK | SILICON VALLEY
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2. |
The nominees are deemed participants in this contest and should be included as filers on the cover page of the proxy statement.
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3. |
Anthony Salino is the sole stockholder, sole director and President of VIA Corp. As a participant in this solicitation, please include him as a filer on the proxy statement.
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4. |
Please mark the proxy statement as preliminary, as required by Rule 14a-6(e)(1).
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5. |
We are unable to locate in your proxy statement the disclosure required by Item 1(c) of Schedule 14A and Rule 14a-5(e) of Regulation 14A. Please revise or advise.
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6. |
We have not located in your proxy statement the disclosure and undertaking required by Item 23 of Regulation 14A as to shareholders who share an address. Please revise or advise.
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7. |
Please fill in all blanks throughout the proxy statement. Information that is subject to change may be bracketed to indicate that fact.
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8. |
Please include a Background or other section in the proxy statement that details the history (if any) between any participant and First Choice leading up to this proxy contest, including a summary of the
contacts between these parties and the court action that resulted in the 2020 Annual Meeting being held.
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9. |
Here or in the forepart of the proxy statement, clearly indicate how many directors will be elected at the Annual Meeting. This is confusing because you state there are currently three directors of First Choice
but you are running four nominees.
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10. |
We note the disclosure here that if elected, your nominees intend to cause the Company to explore “strategic alternatives” including “a possible sale or merger of the Company.” In discussing your interests in
this proxy contest, whether through share ownership or otherwise, discuss whether a participant or any affiliate of a participant could participate in a sale or merger of the Company, either as a party to such transaction or in some other
capacity such as an advisor, etc. See Item 5(b)(1) of Schedule 14A.
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11. |
Disclose whether, it you are successful in this solicitation, you will seek reimbursement from the Company for some or all of the costs of this solicitation. If so, disclose whether you will seek shareholder
approval of such reimbursement. See Item 4(b)(5) of Schedule 14A.
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12. |
The disclosure at the top of page 12 indicates that additional information about VIA, Anthony Salino and the Nominees, including their beneficial ownership, will appear in Schedule I attached to the proxy
statement. However, Schedule I is one sentence long and does not include any of this information, including all of the disclosure required by Item 5 of Schedule 14A. Please revise to provide it.
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13. |
Refer to the disclosure in the first paragraph of this section on page 10. Expand the disclosure about VIA Corp. to state when it was founded, whether it has employees, and what kind of “business consulting” it
provides. See Item 5(b) of Schedule 14A.
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14. |
With respect to securities of First Choice purchased or sold within the last two years by any participant, include the disclosure required by Item 5(b)(vi) of Schedule 14A.
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15. |
Item 5 of Schedule 14A in certain instances requires affirmative disclosure in the negative. For example, Item 5(b)(viii) requires you to state whether or not any participant is or was within the last
year a party to any contract, arrangements or understanding with respect to any securities of the registrant. In addition, Item 5(b)(xii) requires affirmative disclosure about whether the participant or its affiliates have any arrangements
regarding future transactions. Please disclose.
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16. |
At the top of page 13, you reference information “anticipated to be in the Company’s Proxy Statement relating to the 2020 Annual Meeting.” As you are aware, this is a court-ordered meeting and the Company has
not filed a proxy statement and it is not apparent that it will do so. Please revise this and similar references to the Company’s proxy statement throughout your disclosure document, such as on page 14 and elsewhere.
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17. |
Consider disclosing the record date for the 2020 Annual Meeting earlier in the disclosure document. Currently this information first appears on page 14.
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18. |
See our comment above about the record date for the Annual Meeting. Additionally include information about the “location” of the Annual Meeting at the forepart of the proxy statement, including information
about how shareholders may attend the virtual meeting. This disclosure currently first appears on page 16.
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cc: |
Anthony Salino
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