United States securities and exchange commission logo
November 10, 2021
Robert J. Laikin
Chief Executive Officer
Novus Capital Corporation II
8556 Oakmont Lane
Indianapolis, IN 46260
Re: Novus Capital
Corporation II
Registration
Statement on Form S-4
Filed October 18,
2021
File No. 333-260307
Dear Mr. Laikin:
We have reviewed your registration statement 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 this letter by amending your registration
statement and providing the
requested information. If you do not believe our comments apply to your
facts and
circumstances or do not believe an amendment is appropriate, please tell
us why in your
response.
After reviewing any amendment to your registration statement and
the information you
provide in response to these comments, we may have additional comments.
Registration Statement on Form S-4
General
1. Please provide an
opinion of counsel regarding the tax consequences of the transaction.
Please refer to Staff
Legal Bulletin 19.
2. Please highlight the
material risks to public warrant holders, including those arising from
differences between
private and public warrants. Clarify whether recent common stock
trading prices exceed
the threshold that would allow the company to redeem 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.
Robert J. Laikin
FirstName LastNameRobert
Novus Capital Corporation IIJ. Laikin
Comapany 10,
November NameNovus
2021 Capital Corporation II
November
Page 2 10, 2021 Page 2
FirstName LastName
3. Please clarify if the sponsor and its affiliates can earn a positive
rate of return on their
investment, even if other SPAC shareholders experience a negative rate
of return in the
post-business combination company.
4. Disclose the material risks to unaffiliated investors presented by
taking the company
public through a merger rather than an underwritten offering. These
risks could include
the absence of due diligence conducted by an underwriter that would be
subject to liability
for any material misstatements or omissions in a registration
statement.
5. Revise your disclosure to show the potential impact of redemptions on
the per share value
of the shares owned by non-redeeming shareholders by including a
sensitivity analysis
showing a range of redemption scenarios, including minimum, maximum
and interim
redemption levels.
6. We note that certain shareholders agreed to waive their redemption
rights. Please describe
any consideration provided in exchange for this agreement.
Cover Page
7. Please revise your cover page to prominently disclose the number of
common stock shares
you anticipate issuing as part of the business combination. In
addition, please quantify the
value of the shares to be issued in the business combination.
8. Please prominently disclose what the exchange ratio is and how it will
be calculated under
the terms of the business combination agreement.
Questions and Answers About the Business Combination, page 7
9. Please add a question and answer that addresses both the positive and
negative factors that
the boards considered when determining to enter into the business
combination agreement
and its rationale for approving the transaction.
10. Please quantify the aggregate dollar amount and describe the nature of
what the sponsor
and its affiliates have at risk that depends on completion of a
business combination.
Include the current value of securities held, loans extended, fees
due, and out-of-pocket
expenses for which the sponsor and its affiliates are awaiting
reimbursement. Provide
similar disclosure for the company s officers and directors, if
material.
11. Please highlight the risk that the sponsor will benefit from the
completion of a business
combination and may be incentivized to complete an acquisition of a
less favorable target
company or on terms less favorable to shareholders rather than
liquidate.
Robert J. Laikin
FirstName LastNameRobert
Novus Capital Corporation IIJ. Laikin
Comapany 10,
November NameNovus
2021 Capital Corporation II
November
Page 3 10, 2021 Page 3
FirstName LastName
Q. What interests do the Novus current officers and directors have in the
Business Combination?,
page 15
12. Please expand your disclosure regarding the indirect ownership
interest in the target
company held by your executives and directors. Disclose the
approximate dollar value of
the interest based on the transaction value and recent trading prices
as compared to the
price paid.
Subscription Agreements, page 29
13. We note that Energy Vault entered into a Software Agreement with
Palantir. Please file
the agreement as an exhibit to the registration statement.
Comparative Share Information, page 38
14. Refer to the Novus historical column. Please expand the six months
ended June 30, 2021
and year ended December 31, 2020 sections to disclose the two class
earnings per share
data for both your Class A common stock subject to possible redemption
and the non-
redeemable common stock as shown in your historical financial
statements. This
comment is also applicable to your unaudited pro forma statements of
operations on pages
86 and 87 to disclose the historical earning per share data for Novus,
as we note the loss
per share data was not included.
15. Refer to the column, Combined Pro Forma, assuming maximum redemptions.
Please
clarify for the year ended December 31, 2020, the weighted average
shares outstanding
is 128,531,938 shares as shown on page 87. In addition, in your
bulleted paragraph
discussion of Assuming Maximum Redemptions herein and in the Summary
Pro Forma
Financial Information on page 36 and the more detailed unaudited pro
forma financial
information on page 84, please disclose that 2,177,460 shares are
assumed to have been
forfeited by the Founders. Also, disclose how the 2,177,460 shares
were determined, as
we note the filing discloses various amounts of shares subject to
forfeiture, however, it is
unclear which shares aggregate to this total number.
16. Please provide us with your computations of the historical book value
per share for
Energy Vault and Novus as of June 30, 2021, and clarify the
description in subnote (2)
regarding excluding preferred shares/shares outstanding. Also,
disclose that the preferred
shares pertain to Energy Vault, and clarify whether or not any
outstanding preferred
shares are assumed to have been converted into common shares in this
calculation.
Further, it appears the historical book value per share for both
Energy Vault and Novus
have been based on the weighted average shares of common stock, rather
than the actual
number of common shares outstanding at the balance sheet date. Please
revise or advise.
Robert J. Laikin
FirstName LastNameRobert
Novus Capital Corporation IIJ. Laikin
Comapany 10,
November NameNovus
2021 Capital Corporation II
November
Page 4 10, 2021 Page 4
FirstName LastName
17. Refer to the columns of Energy Vault equivalent per share pro forma.
Please remove
disclosure of the 108,963,033 weighted average shares for the six
months ended June 30,
2021 and the year ended December 31, 2020. Instead, that space should
be left blank,
with only the equivalent net loss per share amounts disclosed.
Unaudited Pro Forma Condensed Combined Financial Information, page 82
18. Refer to the second paragraph under Introduction on page 82. Please
clarify that the IPO
Unit offering consisted of one share of Novus Common Stock and
one-third of one
redeemable Novus Warrant. Your current disclosure provides the
opposite of this Unit
composition. Further, please clarify the disclosure on page F-77 of
the June 30, 2021
interim financial statements of Novus to state that one-third, rather
than one-half, of one
redeemable warrant was issued. Please ensure consistency of all
disclosures and amounts
throughout the filing.
19. Refer to the table on page 84 and the two redemption scenarios. With
respect to the
Founder/Sponsor Shares, along with subnote (4), please provide a
reconciliation of the
June 30, 2021 total Founder Shares of 7,187,500 Class B common stock
with the
4,851,562 shares shown in the Assuming No Redemptions column, and as
further reduced
by the forfeiture of 2,177,460 of such shares, equating to the
2,674,102 shares shown in
the Assuming Maximum Redemptions column. In this regard, also explain
how the
exclusion of 1,617,188 shares with transfer restrictions would impact
the total Founder
shares assuming the no and maximum redemption scenarios. Also please
disclose the
reasons why forfeiture of the 2,177,460 Founder Shares will occur upon
the maximum
redemption scenario. We note your disclosure in pro forma adjustment
3(N) on page 90.
20. Expand subnote (3) to the table on page 84 to clarify that both
5,166,666 Private Warrants
and 9,583,333 Public Warrants have been excluded.
21. Refer to page 89 and the third paragraph under Note 3. Please delete
the first sentence as
this was the former criteria under Article 11 of Regulation S-X, prior
to being amended by
SEC Release No. 33-10786. Also, refer to pro forma adjustment 3(J)
explanation on page
90. Please tell us in detail and expand to describe how you arrived at
the 18,890,169
shares of common stock to be issued to the Energy Vault stockholders,
considering
disclosure elsewhere that total is estimated to be 108,963,033 shares.
To the extent you
have netted the share equity of Energy Vault and Novus, please provide
us with the gross
computation.
22. Refer to pro forma adjustment 3(CC) explanation on page 91. Please
explain to us the
meaning of this adjustment and the nature of the liability-classified
warrant instruments,
as we assume it pertains to a reduction of expenses to the historical
financial statements of
Robert J. Laikin
Novus Capital Corporation II
November 10, 2021
Page 5
Energy Vault. Please note that pursuant to Rule 11-02(a)(11)(i) of
Regulation S-X,
expenses which will not recur in the income statement should be
disclosed in the pro
forma notes, rather than treated as reduction to the financial
statements. Please advise or
revise as necessary.
23. Refer to Note 4 on page 91. Please expand subnote (1) to the table to
disclose the number
of dilutive securities that have been excluded from the calculation as
they are deemed
anti-dilutive. In this regard, please disclose in a tabular format,
the number of options,
public and private warrants, restricted stock units, along with the
9,000,000 Earn Out
Shares that are contingently issuable that have also been excluded
from the loss per share
calculation.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
You may contact Beverly Singleton at (202) 551-3328 or Kevin Woody at
(202) 551-
3629 if you have questions regarding comments on the financial statements and
related
matters. Please contact Sergio Chinos at (202) 551-7844 or Sherry Haywood at
(202) 551-
3345 with any other questions.
FirstName LastNameRobert J. Laikin Sincerely,
Comapany NameNovus Capital Corporation II
Division of
Corporation Finance
November 10, 2021 Page 5 Office of
Manufacturing
FirstName LastName