Correspondence 0001104659-22-124940 from CXApp Inc. (CXAI)
CXApp Inc.
Date: Dec. 6, 2022 · CIK: 0001820875 · Accession: 0001104659-22-124940
AI Filing Summary & Sentiment
File numbers found in text: 333-267938
Show Raw Text
CORRESP
1
filename1.htm
Skadden, Arps, Slate, Meagher &
Flom llp
525 UNIVERSITY AVENUE
PALO ALTO, CALIFORNIA 94301
FIRM/AFFILIATE
OFFICES
TEL: (650) 470-4500
FAX: (650) 470-4570
www.skadden.com
December 6, 2022
BOSTON
CHICAGO
HOUSTON
LOS ANGELES
NEW YORK
WASHINGTON, D.C.
WILMINGTON
BEIJING
BRUSSELS
FRANKFURT
HONG KONG
LONDON
MUNICH
PARIS
SÃO PAULO
SEOUL
SHANGHAI
SINGAPORE
TOKYO
TORONTO
VIA EDGAR
U.S. Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Washington, D.C. 20549
Attn:
Edwin Kim
Joshua Shainess
Division
of Corporation Finance
Office of Technology
Re:
KINS Technology Group Inc.
Registration
Statement on Form S-4
Filed October 19, 2022
File No. 333-267938
Ladies and Gentlemen:
On
behalf of our client, KINS Technology Group Inc., a Delaware corporation (the “Company”), and pursuant to the applicable
provisions of the Securities Act of 1933, as amended, and the rules promulgated thereunder, please find enclosed for filing with
the Securities and Exchange Commission (the “Commission”) a complete copy of Amendment No. 1 (“Amendment
No. 1”) to the above-captioned Registration Statement on Form S-4 of the Company originally filed with the Commission
on October 19, 2022 (the “Registration Statement”).
Amendment
No. 1 reflects certain revisions to the Registration Statement in response to the comment letter to Mr. Sheikh, the Company’s
Chief Executive Officer, dated November 18, 2022, from the staff of the Commission (the “Staff”) and other updated
information.
The
numbered paragraphs in bold below set forth the Staff’s comments together with the Company’s responses. Disclosure
changes made in response to the Staff’s comments have been made in Amendment No. 1, which is being filed with the Commission
contemporaneously with the submission of this letter. Unless otherwise indicated, capitalized terms used herein have the meanings assigned
to them in Amendment No. 1.
Registration
Statement on Form S-4 filed October 19, 2022
General
1. Please
update the accompanying financial statements and the related pro forma presentation through
the period ended September 30, 2022.
Response:
The Company acknowledges the Staff’s comment and has updated the accompanying financial statements and the related pro forma presentation
through the period ended September 30, 2022 throughout Amendment No. 1.
2. We
note that the parties negotiated the enterprise value of CXApp at $69 million, subject to
adjustments. Highlight that Inpixon purchased Design Reactor, Inc. and its CXApp
software for a mix of cash and stock valued at $45 million in 2020. Additionally, to
provide appropriate context for investors, disclose Inpixon's current market capitalization.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on pages 113-114 of Amendment No. 1 to include
additional disclosure regarding the purchase price paid by Inpixon in connection with its acquisition of the outstanding capital stock
of Design Reactor, Inc. in April of 2021 and Inpixon’s current market capitalization.
3. In
the summary section and in a Q&A, provide a complete description of the lock-up agreements,
including to whom each agreement applies, the respective durations, and the circumstances
under which the lock-ups may be released. Clarify any differences between the
lock-up agreements for Class A and Class C shares. We note, for example,
that your Anchor Investor, BlackRock, is not a party to the Stockholder Support Agreement.
Please clarify whether BlackRock is subject to any surviving lock-up agreement post-business
combination and whether it is obligated to vote in favor of all of the proposals.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on pages 21, 41-42 and 133-135 of Amendment No. 1
to include additional disclosure of the lock-up agreements for each relevant party and clarified that the Direct Anchor Investors are
subject to their surviving lock-up agreement post-business combination and are not obligated to vote in favor of all of the proposals.
4. We
note that Inpixon will receive the Distribution Tax Opinion regarding the intended
tax treatment of the Distribution and certain related transactions, and that the Tax
Matters Agreement will require KINS and CXApp to comply with the representations made in
the materials submitted to legal counsel in connection with the Distribution Tax Opinion.
Please confirm your intention to file the Distribution Tax Opinion as an exhibit to this
registration statement. Additionally, please tell us whether counsel will provide a
separate tax opinion to support the discussion of tax consequences to U.S. investors
as set forth on page 229.
Response:
The Company acknowledges the Staff’s comment and has revised the exhibit list on page II-2 of Amendment No. 1 to include
a reference to the Distribution Tax Opinion to be delivered by RSM US LLP. See Exhibit 8.1. In addition, pursuant to Staff Legal
Bulletin No. 19, an opinion from either legal counsel or an independent accountant may be provided, therefore it is not anticipated
that a separate tax opinion by counsel will be provided.
5. Given
that the vast majority of Class A stockholders have already redeemed their shares,
please disclose, if true, that as a result of such redemptions and the existence of the Support
Agreements, Class B stockholders have a sufficient percentage of votes to approve
the business combination.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on pages iii, 26, 27, 45, 161, 166, 169, 171, 172, 178,
and 179 of Amendment No. 1 to disclose that as a result of redemptions, it is expected that the shares of common stock held by the sponsors
will be sufficient to establish quorum and to pass each of the proposals, including the business combination.
6. We
note that you filed a preliminary proxy statement in efforts to solicit stockholder approval to
extend the life of the SPAC through June 15, 2023. Please update your Form S-4
to address this extension vote, the potential possible removal of the $5,000,001 net asset
requirement, the Sponsor Loan to fund a bonus payment to non-redeeming stockholders, and
the likelihood that further redemptions will concentrate more voting power with the Sponsor.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on pages 32 and 181-182 of Amendment No. 1 to disclose
more details about the extension special meeting.
7. With
a view toward disclosure, please tell us whether your sponsor is, is controlled by, or has
substantial ties with a non-U.S. person. If so, also include risk factor disclosure that
addresses how this fact could impact your ability to complete your initial business combination.
For instance, discuss the risk to investors that you may not be able to complete an initial
business combination with a U.S. target company should the transaction be subject to review
by a U.S. government entity, such as the Committee on Foreign Investment in the United States
(CFIUS), or ultimately prohibited. Disclose that as a result, the pool of potential targets
with which you could complete an initial business combination may be limited. Further, disclose
that the time necessary for government review of the transaction or a decision to prohibit
the transaction could prevent you from completing an initial business combination and require
you to liquidate. Disclose the consequences of liquidation to investors, such as the losses
of the investment opportunity in a target company, any price appreciation in the combined
company, and the warrants, which would expire worthless.
Response:
The Company’s sponsor is a Delaware limited liability company and is not controlled by, and does not have substantial ties with,
any non-U.S. person or entity. Accordingly, the Company does not intend to make any additional disclosures in future filings.
Summary, page 30
8. Revise
to clarify the difference between CXApp and Design Reactor. For example, when
distinguishing between CXApp and Design Reactor in the questions and answers section, explain
that Design Reactor was formerly doing business under the name CXApp, but in this
registration statement, CXApp refers to the newly formed Delaware holding company.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on page 17 of Amendment No. 1 to include
a new section titled “Who are the parties to the transactions described in this document?”
9. Prominently
disclose that the contemplated spin-off and subsequent merger are structured as a reverse
Morris Trust transaction and that this structure is intended to result in a tax-efficient
disposition of the current CXApp business for Inpixon and Inpixon shareholders. Describe
what a reverse Morris Trust transaction is and briefly discuss why the parties chose this
structure. Your description should include a discussion of the requirements of
the Reverse Morris Trust transaction under Sections 355 and 368(a)(1)(D) of the Internal
Revenue Code.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on pages 33-34 of Amendment No. 1 to include
a new section titled “Transaction Structure.”
10. Address
the risks to current KINS stockholders and to security holders of the combined company should
the parties fail to meet the requirements to preserve the intended tax treatment. Disclose
any indemnification provisions that will benefit Inpixon and Inpixon shareholders if the
distribution and related transactions do not qualify as a reorganization under Sections
355 and 368(a)(1)(D) of the Code. Further, describe the limitations to the combined
company's operations and restrictions on future transactions that are necessary to preserve
the intended tax treatment and discuss how these restrictions may impact the combined
company's business.
Response:
In response to the Staff’s comment, KINS added disclosure in the last two paragraphs of the new section titled “Transaction
Structure” on page 34 of Amendment No. 1.
11. We
note the parties' intention that holders of CXApp Common Stock will own more than 50%
of the common stock of New CXApp immediately following the Merger. Please clarify how
you will ensure that historic parent shareholders will own more than 50% of the vote and
value of the post-business combination company.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on pages 21 and 40 of Amendment No. 1 to clarify
how historic parent shareholders will own more than 50% of the vote and value of the post-business combination company.
12. With
respect to the previous acquisition of Design Reactor, Inc. by Inpixon, please clarify
how the spin-off and subsequent merger will impact the remaining shares subject to any Earn-Out
Provision.
Response:
The spin-off and subsequent merger will have no impact on the earn out provisions that were applicable to the Inpixon acquisition of
Design Reactor as such conditions and corresponding payouts were satisfied by Inpixon prior to the end of the first quarter of 2022.
As a result, there have not been any further amendments in Amendment No. 1 with respect to this comment.
Risk Factors, page 53
13. Please
add a risk factor to highlight that shares of post-business combination SPACs commonly decline
in value. Your risk factor should address that the Sponsor and the Anchor Investor
purchased shares at prices below the initial public offering price and maybe incentivized
to sell their shares. Similarly, the address that the CXApp stockholders prior
to the merger may acquire shares below market carrying cost and may be incentivized
to sell their shares. Any resulting sales may lower the trading price of the Class A
common stock. Further, if the price declines below the $11.50 per share exercise price,
it is unlikely warrants will be exercised and New CXApp will be unable to raise further proceeds
from the warrants.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on page 73 of Amendment No. 1 to include
this additional risk factor.
14. Please
add a risk factor that addresses the substantial amount of public Class A stockholders that