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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/07/23 Sloss Dakin SC 13D/A 2:406K Energy Vault Holdings, Inc. Hogan Lovells US LLP Energy Vault PML SPV 1 LP Prime Movers Growth Fund I LP Prime Movers Growth GP I LLC Prime Movers Lab Fund GP II LLP Prime Movers Lab Fund II LP Prime Movers Lab GP II LLC |
Document/Exhibit Description Pages Size 1: SC 13D/A Amendment to Statement of Acquisition of HTML 330K Beneficial Ownership by an "Active" Investor 2: EX-5 Form of Preset In-Kind Distribution Plan HTML 74K
Trading Symbol: NRGV
Plan Type: ☐ New Plan ☐ Modification
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To the Client:
Name: Taylor Frankel
E-Mail:
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Copies to:
Name: Hogan Lovells US LLP
E-Mail: PMLCompliance@hoganlovells.com
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To Issuer:
Name: Energy Vault Holdings, Inc.
Attn: Josh McMorrow
E-Mail:
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Copies to:
Name: Samuel D. Rettew
Latham & Watkins LLP
Telephone:
E-Mail:
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To MSSB Financial Advisor:
Primary Contact: William Hains
Alternate Contact: Drake Richie
Telephone:
Fax:
E-mail:
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To Aduro Advisors:
E-mail:
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•
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A letter of authorization to deliver the underlying shares to limited partners and general partners of Client;
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•
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A schedule of limited partners and general partners of Client (including, as applicable, any limited partners or members of the general partners of the
Client that are expected to receive a distribution of the Shares from the general partner) (the “Partnership Schedule”);
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•
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A distribution representation letter that lists affiliates and non-affiliates (Part IV - Exhibit A), as known by the Client and as of the date of the
Distribution Plan; and
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•
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All documentation required to transfer Shares into book entry, including, but not limited to, stock powers.
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a.
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The undersigned is not in possession, and is not aware, of any material nonpublic information about the securities which are the
subject of this Distribution Plan or the Issuer of such securities;
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b.
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The undersigned is entering into this Distribution Plan in
good faith and not as part of a plan or scheme to evade any law, including, without limitation, the federal securities laws or any law governing insider trading;
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c.
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The undersigned
understands and agrees that (i) MSSB makes no representation that this Distribution Plan complies with, and/or provides an affirmative defense against allegations
of insider trading pursuant to, SEC Rule 10b5-1, and (ii) the undersigned has consulted with the undersigned’s own advisors as to the legal, tax, financial and other aspects of this Distribution Plan, including its compliance with SEC Rule 10b5-1.
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d.
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The undersigned owns the securities which are the subject of this Distribution
Plan free and clear and acknowledges and confirms that:
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(i)
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Neither the
undersigned nor the securities subject to this Distribution Plan are subject to any pledges, liens, security interests or other impediments to transfer, nor
is there any contractual restriction or litigation, arbitration or other proceeding pending, or to the undersigned’s knowledge threatened, that would prevent or interfere with the distribution of Shares under this Distribution Plan; and
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(ii)
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To the best of the undersigned’s knowledge, the execution and delivery of this Distribution Plan by the undersigned and the distribution contemplated by this Distribution Plan will not contravene applicable law or any
agreement or other instrument binding on the undersigned or any of the undersigned’s affiliates or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the undersigned or the undersigned’s
affiliates.
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e.
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While this Distribution Plan is in effect, the undersign will
not enter into any corresponding or hedging transaction or position with respect to the securities that are the subject of this Distribution Plan (including, without
limitation, with respect to any securities convertible or exchangeable into common stock of the Issuer) and, unless this Distribution Plan is modified or terminated
in accordance with the terms hereof, the undersigned agrees not to alter or deviate from the terms of this Distribution Plan;
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1.
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Modification of Distribution Plan.
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a.
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The undersigned may not modify this Distribution Plan unless:
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(i)
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The undersigned provides MSSB with a new distribution schedule(s) in which the undersigned represents, among other things, that on the date of such modification the undersigned is not
aware of any material, non-public information regarding the Issuer or any of its securities (including the Shares), that the modification is being made in good faith and not as part of a scheme to evade the Rules, and that the undersigned’s
representations and warranties contained in this Distribution Plan are true as if made at and as of the date of such letter; and
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(ii) such modification occurs only outside of any “blackout periods” of which Issuer given Client at least two
days’ notice.
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b.
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The undersigned agrees to comply with all conditions and requests set forth in this Distribution Plan.
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a.
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The undersigned understands that this Distribution Plan may be suspended if MSSB
receives written notice from the Issuer or from the undersigned of a legal, regulatory or contractual restriction applicable to the Issuer or to the undersigned that would be violated by the distribution of Shares.
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a.
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The undersigned understands that this Distribution Plan will terminate at market
close on the Plan End Date or, if earlier, upon the completed distribution of the Shares subject to this Distribution Plan. In addition, this Distribution Plan shall terminate, regardless of whether the Shares have been distributed, upon any of the following events:
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(ii)
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MSSB receives two days’ written notice from the undersigned terminating this Distribution Plan (which may be given for any reason); and
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(iii)
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The undersigned receives two days’ written notice from MSSB terminating this Distribution Plan (which may be given for any reason).
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1.
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Obligation to Consult Legal Advisors. The undersigned agrees that the
undersigned will not enter into, modify, suspend or terminate this Distribution Plan except upon consultation with the undersigned’s own legal advisors.
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2.
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Inconsistent Provisions. If any provision of this Distribution Plan is or
becomes inconsistent with any applicable present or future law, rule or regulation, that provision will be deemed rescinded to the extent required in order to comply with the relevant law, rule or regulation. All other provisions of
this Distribution Plan will continue and remain in full force and effect.
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3.
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Effect of Instructions on Other Agreements with MSSB. Nothing in this
Distribution Plan changes any other terms or agreements that are already applicable to the undersigned’s account or accounts, or that otherwise exist between MSSB and the undersigned.
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4.
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Choice of Law. This Distribution Plan shall be construed in accordance with the internal laws of
the State of New York.
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5.
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Counterparts. This Distribution Plan may be signed in any number of
counterparts, each of which shall be deemed an original, with the same effect as if the signatures thereto and hereto were placed upon the same instrument.
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Client
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By:
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Name:
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Title:
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Date:
NOTE: Signature date above must be the same as the Adoption Date
set forth in Section I. of the Distribution Plan above.
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1.
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The undersigned proposes to make a pro rata in-kind distribution of the Stock to its partners, without the payment of any consideration, based upon their respective capital interests
of the above-referenced Stock of the Company pursuant to the terms of its partnership agreement.
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2.
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The general partner of the undersigned further proposes to make a pro rata in-kind distribution of the Stock to its partners, without the payment of any consideration, based upon their
respective capital interests of the above-referenced Stock of the Company pursuant to the terms of its partnership agreement.
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4.
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The undersigned has not held a short position, nor any put or other option to dispose of, any Company stock nor any securities convertible into Company stock.
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5.
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The undersigned is not aware of any circumstances in which it would be considered an underwriter or engaged in a distribution of securities for the Company.
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6.
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No share of the Stock is subject to an agreement granting any pledge, lien, mortgage, hypothecation, security interest, charge, option or encumbrance, other than those which may have
been entered into between the undersigned and Morgan Stanley.
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7.
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Except for the recipients noted on the attached schedule, as known by the undersigned and as of the date of the Distribution Plan, the distributees are not "affiliates" of the Company
as that term is defined in Rule 144(a)(1) of the Act and have not been an affiliate of the Company for at least three months.
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8.
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The Company, its counsel and its transfer agent may rely on these representations and warranties.
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Tranche
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Threshold Trigger
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Total Number of Shares to Distribute
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